Google Play Billing Policy: Whether Anti-Competitive In Nature

ABSTRACT:

The goals of both, namely the maximization of public welfare, can be compared in terms of how competition law and policy handle the process as well as to those of political democracy.[1] But because of the quick rise of e-commerce and the digital market, it has grown increasingly complex. The paper describes the entire situation by the way of taking an example of the contemporary Indian problem that occurred in relation to the Google Play billing system, contextualize it with the competition law and its current state, and draws attention to the shortcomings in the ruling itself.

INTRODUCTION:

Due to the rapid growth in field of e-commerce and digital market place there has been an insurgence of platform to facilitate the process and in turn gaining power from it. This new field is governed by multiple laws but the focus of the article is on the competition law which keeps the power of the platforms in check in order to preserve the right of freedom of choice and welfare of the consumer by keeping in check the competition in the marketplace.

The Google Play Billing System (hereinafter “GPBS”) in context to the digital market place of Google Play have been in spotlight as was fined for anti-competitive practice which was been followed. The GPBS has been rightfully charged by Competition Commission of India (hereinafter (CCI) and in this article after critically analyzing the facts, issues will lay down the judgement of the court, then point out the Main Factors which the Commission took aid in order to reach an ultimatum as well as substantiating it and then even pointing out the lacunae that even this judgement suffers from.  

ANALYSIS:

India has seen a drastic change in the technology and in the modern times due to increasing availability of electronic devices as smart phones, laptops, etc. with the supplement of the Internet has been the epicenter for the emergence of the e-commerce platform and mobile payment systems. Due to this emergence as the law changes with the change to the society so there has been changes, amendment and even addition of laws or legal provision governing the area of the digital market place. In Businesses operating in the digital market place in India have to comprise with multiple laws such as:

1. The Information Technology Act, 2000,[2]
2. The Indian Contract Act, 1872,[3]
3. The Consumer Protection Act, 2019,[4]
4. The Competition Act, 2002,[5]
5. The Payment and Settlement Systems Act, 2007,[6]
6. The Reserve Bank of India (RBI) regulations on digital payments,[7]
7. The Copyright Act, 1957,[8]
8. The Trademark Act, 1999,[9]
9. The Patents Act, 1970.[10]

But, this article focuses on the aspect of assessing the junction where the interfaces where two domains of completion law and the digital market place meets, in the recent times due to the fine imposed by the CCI against the Google for GPBS being anti-competitive in nature and impugned monetary fine of Rs. 936.44 crores as result of the case of XYZ vs Alpahabet Inc..[11]

XYZ v. ALPHABET INC.:

BACKGROUND:

There was a two-fold allegation made by the informants on Google as recognized by the commission, firstly was the mandatory use of the GPBS for purchasing apps as well as to conduct in-app purchases restricts the choice available to the app developers and also keeping in mind the 30 percent service tax which may be 15 in some cases which is mandatory to be given to Google under the GPBS for any purchasing of the app for the google play store and for ant in-app purchases as well. Secondly, was that the other mobile wallets and UPI apps are not accepted as legitimate payment methods in the Google Play payment system.[12]

Issue arose:

1. Whether making the use of Google Play’s billing system (GPBS), exclusive and mandatory by Google for App developers/owners for processing of payments for App and in-app purchases and charging 15-30% commission is violative of Section 4(2) of the Act?
2. Whether exclusion of other UPI apps/mobile wallets as effective payment options on Play Store is unfair and/or discriminatory as per Section 4(2) of the Act?
3. Whether pre-installation and prominence of Google Pay UPI App (GPay) by Google is in violation of Section 4(2) of the Act?

WHETEHR GPBS PRACTICE IS ANTI-COMETITICE IN NATURE OR NOT:

Yes, the GPBS system was anti-competitive in nature and the commission was right in its approach and holding them liable under 4(2)(a)(i),[13] 4(2)(a)(ii),[14] 4(2)(b)(ii),[15] 4(2)(c),[16] and 4(2)(e) of the Act.[17] and we can analyze each of the aspects discussed by the court while substantiating it even further:

GPBS:

GPBS is the proprietary billing system of the google, in which the app developer makes account with Google, and in this system the Google gets its “service fee” on all the app purchase or in-app purchase. In the due process of creating an account by the app developer with Google they have to agree to the DDA (Developer Distribution Agreement) and the DPP (Developer Program Policies) which clearly mandates the compulsory use of the GPBS.[18] Further, if seen in the Section 4 of the Google Play’s Payment Policy can be clearly inferred that the not only does it mandates the use of GPBS,[19] but in addition it also has an “Anti-steering provisions” which means it also restrict the ability of the app-developer to inform the consumer about in-app purchase from some elsewhere. There were number of factors as to why the GPBS system is anti-competitive in nature such as subsequently discussed.

DISCRIMINATORY PRACTICES:

Then Court finally highlighted the part of discriminatory practice which comes to light when we see that YouTube which is owned by Google does not use GPBS but YouTube is in connection with third-party payment processors directly, Google had given liberty to YouTube but not to the others who still have to follow the GPBS and have to pay the exorbitant rate of 15-30% service fee every time putting them at a disadvantage;[20] (cite) When we say discriminatory practice, we say so in the light of the practices which results in denial of market access in violation of provisions of section 4. (cite para 40 Arshiya Rail Infrastructure Limited Vs. Respondent: Ministry of Railways Arshiya Rail Infrastructure Limited vs. Ministry of Railway: MANU/CO/0076/2012). Also, the Supreme Court itself has interpreted denial of market access under Section 4(2)(c) widely, noting that denial of market access ‘in any manner’ would fall under its ambit, regardless of whether it is a denial of access to competitors or denial of access to players in vertically affected markets.[21] So the denial of market access used in this context is an umbrella term. Here, Google turning a blind eye to the YouTube in turn to increase their revenue allowed them engage with a third-party payment processor and like others they are charged significantly lesser fee then they themselves charge to others which ranges from 15-30%.

ACCESS TO DATA:

All the Google-owned services have access to the all data giving competitive advantage as a result of having access to this downstream competitors’ data set. Google would be able to use this information to enhance its offerings and more effectively target its potential clients. On the other side, the downstream rivals wouldn’t have access to the entire data set, which would hurt their ability to compete;[22] as can be inferred from the clause 9.2 of the DDA,[23] and also from the “Share usage & diagnostics information with Google” as explained on the Google Play’s Support page itself.[24] From the very insurgence of the digital marketplace access to data have been both an enabler and driver of competition and like any tool it serves the competitive as well as the anti-competitive services. There are companies like Google in at this very instance we can see that it misused their data access and companies not being careful not to abuse their control over the data will harm consumer welfare as well as limit the competition.

INNOVATION AND BARRIER TO ENTRY:

The GPBS has an adverse effect on the even though Google argues that GPBS as evident from its averments that it aids in levelling the playing field for app developers and stops monopolistic practices by app shops. On the other hand, while in reality as accepted by the commission as well GPBS stifles innovation by preventing developers from experimenting with fresh business models and sources of income.[25] The same argument is forwarded with respect to barrier to entry as it raises barriers to entry for competitors and inhibits developers’ capacity to provide alternative payment systems, Google’s requirement that app developers utilize its billing system reduces competition and choice for app developers and customers.[26]

UPI

There was another issue of UPI, Google has made only itself available to the intent flow technology while the other UPI only have access to the collect flow technology, to differentiate between in intent flow and collect flow in simple terms would be that, intent flow is a connected chain of steps, user-friendly and simple while collect-flow technology is a broken chain of steps which are disconnected with each other,[27] through this this Google was discriminated between developers of “similarly placed apps, equally placed transactions”.[28] While rejected the last contention as the option of pre-installation is available to all the others just because one utilizes it does not make it abuse of dominant position.

LIMITATION TO THE JUDGEMENT:

The main aim of the competition law is to maintain the following aspects:

1. Prohibition of anti-competitive agreements
2. Prohibition of abuse of dominant position
3. Merger control
4. Consumer protection

When any practice which is in contravention of any of the point and is having an adverse-effect on market competition is an anti-competition practice.[29]

With the rise of the e-commerce and digital marketplace there has been a sharp rise in anti-competitive practice like price-fixing, predatory pricing, Exclusive dealing, tying and bundling, abuse of market power.

As said by Ashok Kumar Gupta, chairman of Competition Commission of India that, “Digital markets are epicenters of technological innovation but lately they have become zones of “entrenched and unchecked dominance”,[30] all this has been possible due to the presence of lacunae in the act of competition law itself. Some of the lacunae are:

LACUANE 1: “RELEVANT MARKET IN DIGITAL MARKET PLACE”

The “relevant market” defined in Indian Competition law,[31] is based on the geographic region as in Section 2(s),[32] and the nature of product or service being offered as in Section 2(t),[33] which is ingenious only in case of the single side transaction, but does not take into account the interconnectedness of the sellers on each other which occurs in a multi-side transaction. There are substantial differences between a multi-side transaction and a single side transaction such as the unlike the traditional market where there was a seller and a buyer, here there can be multiple buyer as well as seller and may at times for one buyer to earn money there has to be involvement of other buyer, all of the people interact through a platform which is to say there is an intermediary role and there is a degree of the network effect, there are pricing models and even risk allocation.[34]

The biggest limitation to Indian Competition Law is the Multi-sided transaction as it is not possible to find the “relevant market” based on the available test, when looking at judicial procurements we see that courts have only recognized multi-sided nature of platform,[35] but have not adopted any means to aid the situation as can be seen from the subsequent judgement including Xyz v. Alphabet Inc.,[36] where to the CCI did not give any weightage to the multi-sided nature of the app store which connects the smartphones users to app developers just applying the tradition test of substitutability and geographic region just gave three separate relevant market and had delineated between market for licensable mobile operating system for smart mobile devices and the market for app store for Android OS.

Keeping in mind the past inconsistent judicial procurements with respect of “relevant market” in competition law ranging from cases such as Matrimony.Com Limited vs Google LLC & Ors,[37] Make My Trip case,[38] to contemporary cases such as Harshita Chawla,[39] Delhi Vyapar Mahasangh cases.[40]

LACUNAE 2: DETERMINATION OF DOMINANT POSITION AND ABUSE OF POWER BASED ON SHARES:

Market share measures the percentage of total sales or revenue in a market that a company controls, but it does not take into account other factors that can affect a company’s ability to exercise market power, such as barriers to entry, network effects, economies of scale, and access to data or other resources. Even though, in the judgement the court while accessing the case of Xyz v. Alphabet Inc.,[41] the court had taken into account other factors such as access to data, entry barriers, etc. but had clearly stated that the Commission is of the view that market share is one of the primary though not determinative parameters to assess dominance in a relevant market.[42] Accepting market share as a dominant factor to access the dominance in the market place can be very misleading in the current age witnessing the rise of e-commerce and digital market place as mentioned above.

CONCLUSION:

To sum up, the key takeaway from this article is that GPBS was anti-competitive in nature and is one of the major accomplishment of the CCI in identifying the issue and then delivering the judgement it in a very detail and a descriptive manner had discussed the issue while shedding light to the aspects of discriminatory practice, access to data and even to the effect of innovation and the barrier on entry, while also highlighting the second clubbed issue of UPI which was discussed then afterwards highlights the lacunae which the decision itself suffers from and through this highlights lacunae we can clearly see the way forward which is, accepting and understanding our own shortcomings which is that unlike other countries with competition law India still falls a bit short, India as a way forward just as a suggestion can take two different ways like:

1. Can pass a similar ruling as the seminal ruling of Ohio v. Amex, the CCI can take into account the feedback effects and competitive constraints in transaction and non- transaction platforms which is unique to the multi-side transaction,[43] or
2. Can either join or create something similar to the Digital Markets Act in the EU,[44] so that the there is a separate legislation to deal with digital market place altogether.

While at the current juncture though there is the Competition (Amendment) Bill, 2022, which a has passed both the Lok Sabha as well as the Rajya Sabha on March 29, 2023 and April, 3 2023 respectively and one of its key issue is analysing digital market, so the India may in the future successfully tackle issues such as which arose at the current instance.[45]

Author : Arkadeep Poddar, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at IIPRD

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[1] JSTOR: INDIAN COMPETITION LAW: GLOBAL CONTEXT, by B.S. Chauhan, published in Journal of the Indian Law Institute, July-September 2012, Vol. 54, No. 3 (July September 2012), pp. 315-323, at page 315,  available at, https://www.jstor.org/stable/44782475, (last visited 14^th May, 2023).

[2] The Information Technology Act, 2000.

[3] The Indian Contract Act, 1872.

[4] The Consumer Protection Act, 2019.

[5] The Competition Act, 2002.

[6] The Payment and Settlement Systems Act, 2007.

[7] Master Direction on Digital Payment Security Controls, Reserve Bank of India, available at, https://www.rbi.org.in/Scripts/NotificationUser.aspx?Id=12032&Mode=0, (last visited 14^th May 2023).

[8] The Copyright Act, 1957.

[9] The Trademark Act, 1999.

[10] The Patents Act, 1970.

[11] Xyz and Ors. V. Alphabet Inc. and Ors., 2022 SCC OnLine CCI 63.

[12] Xyz and Ors. V. Alphabet Inc. and Ors., 2022 SCC OnLine CCI 63.

[13] The Competition Act, 2002, § 4(2)(a)(i).

[14] The Competition Act, 2002, § 4(2)(a)(ii).

[15] The Competition Act, 2002, § 4(2)(b)(ii).

[16] The Competition Act, 2002, § 4(2)(c).

[17] The Competition Act, 2002, § 4(@)(e).

[18] Xyz and Ors. V. Alphabet Inc. and Ors., 2022 SCC OnLine CCI 63, ¶ 249.

[19] Google Play, Google Play’s payment policy: Google Terms and Services, § 4, Rights and Restrictions, available at, https://play.google.com/about/play-terms/index.html, (last visited on 14^th May, 2023).

[20] Xyz and Ors. V. Alphabet Inc. and Ors., 2022 SCC OnLine CCI 63, ¶ 29.

[21] Competition Commission of India v. Fast Way transmission Pvt. Ltd., Civil Appeal No. 7215 of 2014.

[22] Xyz and Ors. V. Alphabet Inc. and Ors., 2022 SCC OnLine CCI 63, ¶ 282, 284.

[23] Google Play Developer Distribution Agreement, clause 9.2, available at, https://play.google.com/about/developer-distribution-agreement.html, (last visited on 14^th May, 2023).

[24] Google Play Support page: “Share usage & diagnostics information with Google”, available at https://support.google.com/accounts/answer/6078260?hl=en, (last visited at 14^th May, 2023).

[25] Xyz and Ors. V. Alphabet Inc. and Ors., 2022 SCC OnLine CCI 63, ¶ 314.

[26] Xyz and Ors. V. Alphabet Inc. and Ors., 2022 SCC OnLine CCI 63, ¶ 186, 193.

[27] Xyz and Ors. V. Alphabet Inc. and Ors., 2022 SCC OnLine CCI 63, ¶ 354.

[28] Xyz and Ors. V. Alphabet Inc. and Ors., 2022 SCC OnLine CCI 63, ¶ 355.

[29] Competition Commission of India v. Bharati Airtel Limited and Ors. (2018) SCC OnLine SC 2678.

[30] Khurana and Khurana Advocates and IP Attorneys, The Antitrust issues in digital markets – Modifiable anti-competitive conduct of Artificial Intelligence, published at 12^th October, 2021, available at, https://www.khuranaandkhurana.com/2021/10/12/the-antitrust-issues-in-digital-markets-modifiable-anti-competitive-conduct-of-artificial-intelligence/, (last visited at 14^th May, 2023).

[31] The Competition Act, 2002, § 2(r).

[32] The Competition Act, 2002, § 2(s).

[33] The Competition Act, 2002, § 2(t).

[34] Business Model Analyst: Mutisidedx Platform Business Model, available at,  https://businessmodelanalyst.com/multisided-platform-business-model/, (last visited 14^th May, 2023).

[35] Vijay Gopal Vs. Big Tree Entertainment Pvt. Ltd. (BookMyShow) and Ors., 2022 SCC OnLine CCI 36.

[36] Xyz and Ors. V. Alphabet Inc. and Ors., 2022 SCC OnLine CCI 63.

[37] Matrimony.Com Limited vs Google LLC & Ors, 2018 SCC OnLine CCI 1.

[38] Makemytrip India Pvt. Ltd. MMT and Another V. Competition Commission of India and Others, 2022 SCC OnLine Del 4440.

[39] Harshita Chawla (informant) Whatsapp Inc. and Facebook Inc. v. Competition Commission of India, 2020 SCC OnLine CCI 32.

[40] Amazon Seller Services Private Limited, represented by its Authorized Signatory Mr. Rahul Sundaram v. Competition Commission of India, represented by its Secretary and Others, 2021 SCC OnLine Kar 12626.

[41] Xyz and Ors. V. Alphabet Inc. and Ors., 2022 SCC OnLine CCI 63.

[42] Xyz and Ors. V. Alphabet Inc. and Ors., 2022 SCC OnLine CCI 63, ¶ 164.

[43] IndiaCorpLaw: Delineating Relevant Market for Multisided Platforms: Transaction vs Non-Transaction Platforms, by Harshit Upadhyay and Sanigdh Budhia, publishe at October 26, 2022, available at, https://indiacorplaw.in/2022/10/delineating-relevant-market-for-multisided-platforms-transaction-vs-non-transaction-platforms.html, (last visited 14^th May,2023).

[44] European Commission: The Digital Markets Act: ensuring fair and open digital markets, available at https://commission.europa.eu/strategy-and-policy/priorities-2019-2024/europe-fit-digital-age/digital-markets-act-ensuring-fair-and-open-digital-markets_en, (last visited 14^th May, 2023).

[45] PRS Legislative Research: The Competition (Amendment) Bill, 2022, by the Ministry of Finance, available at, https://prsindia.org/billtrack/the-competition-amendment-bill-2022, (last visited on 14^th May, 2023).

Understanding Obscenity Laws: Tests, Judicial Interpretations, and Media Impact

Introduction

Obscenity laws have a significant impact on the media and expression landscape, determining the parameters of what is considered appropriate for general public consumption. By prohibiting content that is deemed offensive, morally repugnant, or potentially harmful to public decency, these laws aim to protect society values. But the definition of obscenity is not always the same,  it can be interpreted differently and changes over time in response to changing social mores and cultural standards. Therefore, navigating the complicated world of media content regulation requires an understanding of the specifics of obscenity laws and how the courts interpret and apply them. Examining obscenity laws provides insightful information about the delicate balance between individual liberties and communal values in the context of media and communication, from historic court cases that have shaped judicial interpretations to the ongoing discussions about the need to preserve public morality versus the right to freedom of expression.

The concept of the term obscene

The term “obscenity” originates from the Latin word “obscaena,” which originally referred to elements of a theatrical production that were kept offstage. Its modern usage encompasses things considered offensive or morally objectionable, extending beyond sexual content to include various forms of repugnant behavior or expression. It can be employed metaphorically to critique unethical financial gains as “obscene profits” or to condemn the immorality and brutality of war as “the obscenity of war.” In these contexts, “obscenity” denotes strong disapproval, highlighting the extreme offensiveness or immorality of the subject matter. The precise meaning of obscene is though still very ambiguous.[1] Though it can be explained as material, language, or behavior that is considered offensive, repulsive, or morally repugnant by prevailing societal standards of decency and morality. It typically involves content that is sexually explicit, vulgar, or otherwise deemed inappropriate for public consumption due to its explicit or graphic nature. However, obscenity can also extend to other forms of expression or conduct that violate commonly held moral or ethical principles, such as violence, cruelty, or gross disregard for human dignity. The definition of obscenity may vary depending on cultural, social, and legal contexts, and it often involves subjective interpretations based on individual perspectives and community standards. It is also important to note that Defining obscenity is Highly context-driven and could be specific to some parts of the world, what might be considered obscene in one place might not be considered obscene elsewhere.[2]

Several tests have evolved through various judgments that lay down what qualifies as obscene and what does not.[3]

Tests for What is Considered Obscene.

One prominent test used to assess obscenity is the Miller test, named after the U.S. Supreme Court decision in Miller v. California.. This test consists of three parts: the test states that “Firstly, whether the work, taken as a whole, appeals to the prurient interest according to contemporary community standards. Secondly, whether the work depicts or describes sexual conduct in a patently offensive way, as defined by applicable state law. And thirdly, whether the work lacks serious literary, artistic, political, or scientific value. The work is deemed obscene only if all three conditions are met.”[4]

Another significant test is the Hicklin test, which originated from the English case Regina v. Hicklin This test focuses on ascertaining whether the tendency of the material is to deprave and corrupt those exposed to it. It assesses the potential to corrupt individuals open to immoral influences and generally takes a broad view of what could be considered obscene.[5]

In the United States, the Roth test is also used, named after the case Roth v. United States. This test evaluates obscenity from the perspective of the average person, applying prevailing community standards. It considers how contemporary societal values influence perceptions of obscenity, recognizing that standards may evolve over time.[6]

Judicial interpretations of Obscenity in Indian Courts.

The interpretations of obscenity in India started with the case of Ranjit D. Udeshi v. State of Maharashtra, the Supreme Court of India was tasked with ruling on a matter related to obscenity. Ranjit Udeshi,[7] a partner in a firm owning a book stall in Bombay, faced prosecution under Section 292 of the Penal Code for selling and possessing copies of D.H. Lawrence’s novel “Lady Chatterley’s Lover,” which was deemed obscene under Indian obscenity laws due to its suggestive content. Udeshi was subsequently convicted and fined 20 rupees or sentenced to one week’s simple imprisonment. Dissatisfied with the verdict, the petitioner sought to challenge the constitutionality of Section 292[8] of the Penal Code. Justice Hidayatullah introduced a modified version of the Hicklin test. In his judgment for the Court, he outlined three key adjustments to the original English Hicklin test. Firstly, he emphasized that the mere presence of sex and nudity in art and literature could not automatically be considered evidence of obscenity; additional factors were required to establish obscenity. Secondly, he stressed that the depiction of sex alone was insufficient to be deemed as depraving or corrupting. Lastly, he highlighted the importance of assessing the work as a whole, considering both obscene and non-obscene elements, and determining whether the non-obscene parts outweighed the obscene ones, or if the obscenity was so minimal that it could be disregarded. The third modification to the test involved introducing a defense against charges of obscenity if the publication in question served the public good. This change was implemented through an amendment to the Penal Code in 1969. Under this amended law, the court was required to evaluate the entirety of the work. In the case of Samaresh Bose v. Amal Mitra,[9] the Court was tasked with determining whether the Bengali novel Prajapati was obscene due to its portrayal of sexual encounters and use of vulgar language. While the trial court deemed the matter obscene, the Supreme Court disagreed with this finding and noted that

“The concept of obscenity is moulded to a great extent by the people who are expected to read the book. It differs from country to country, depending upon the standards of morality. Even the outlook of a Judge may differ from another Judge as it is a matter of objective assessment of the subjective attitude of the Judge hearing the matter”

And later The Court also clarified that there is a distinction between vulgarity and obscenity.[10] Until 2014, both the Supreme Court and the High Courts in India applied the Hicklin test. However, in 2014, the Supreme Court officially abandoned this test in the case of Aveek Sarkar v. State of W.B[11]. In this case, the Court was tasked with determining the obscenity of a semi-nude photograph featuring a renowned German tennis player with his dark-skinned fiancée. Originally published in a German magazine, the photograph was subsequently reproduced in Sportsworld and Anandabazar Patrika. The Court concluded that simply depicting a nude or semi-nude woman in a picture did not constitute obscenity.

Kinds of Media on which the obscenity laws apply.

Obscenity laws are applicable to a diverse array of media formats, spanning print, broadcast, digital, and artistic realms. In print media, newspapers, magazines, books, and pamphlets fall under the purview of obscenity regulations, governing both written and visual content. Broadcast media, including television and radio, are subject to these laws, impacting broadcasts, advertisements, and programs aired to the public. With the advent of the internet, obscenity laws extend to digital platforms such as websites, social media, and streaming services, encompassing text, images, videos, and other digital content. Furthermore, motion pictures, television shows, videos, and other visual media are scrutinized for compliance with obscenity regulations. Artistic expressions, ranging from paintings and sculptures to performances and exhibitions, are also subject to these laws if they contain sexually explicit or offensive material. Additionally, advertisements displayed through posters, billboards, and commercials may be regulated for obscenity. Even live performances, such as stage plays, concerts, and public events, can come under scrutiny if they feature content deemed obscene. Overall, obscenity laws aim to regulate and control content that is considered offensive, morally objectionable, or harmful to public decency and morals across a wide spectrum of media formats.[12]

Impact and necessity of controlling obscenity from media

Controlling obscenity in the media is deemed necessary due to its significant impacts on individuals and society at large. One crucial aspect of this necessity lies in safeguarding public morals and values. Obscene content has the potential to undermine societal norms, eroding moral standards and cultural integrity. Additionally, regulating obscenity is essential for protecting vulnerable audiences, particularly children and adolescents, from exposure to harmful material that could lead to psychological distress or inappropriate behavior. Moreover, controlling obscenity aims to prevent harm by discouraging the normalization of detrimental behaviors such as violence, substance abuse, and sexual exploitation. It also plays a role in promoting public health by combatting the dissemination of unrealistic or harmful attitudes towards sexuality and relationships. Furthermore, regulating obscenity contributes to the preservation of social harmony by mitigating the dissemination of divisive or inflammatory narratives that could incite social unrest. While ensuring the regulation of obscenity, it’s also imperative to uphold the principles of freedom of expression, striking a balance between protecting individuals and maintaining liberties. In essence, controlling obscenity in the media serves to uphold public morals, protect vulnerable audiences, prevent harm, promote public health, preserve social harmony, and safeguard freedom of expression within legal and ethical boundaries.

Conclusion

Examining obscenity laws highlights how societal values and the right to free speech must be balanced when controlling media content. Courts attempt to negotiate the difficult terrain of what constitutes obscenity through judicial interpretations in landmark cases and tests such as the Miller and Hicklin tests. These laws raise significant concerns about censorship and individual liberties even as they work to safeguard vulnerable audiences and uphold public morals. It is necessary for legislators and attorneys to modify these laws to reflect modern values and protect fundamental rights as society views continue to change. In the end, the discussion around the control of obscenity in the media is still dynamic and ongoing, reflecting how ethical issues and cultural norms are constantly evolving.

Author : Srushti Joshi, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at IIPRD

References.

Cases

1. Aveek Sarkar v. State of W.B.
2. Regina v. Hicklin
3. Ranjit D. Udeshi v. State of Maharashtra
4. Roth v. United States
5. Samaresh Bose v. Amal Mitra
6. Bobby Art International v. Om Pal Singh Hoon & Anr.
7. Jagdish Jugtawat v. State of Madhya Pradesh
8. K.A. Abbas v. Union of India
9. M/s Super Cassettes Industries Ltd. v. Board for Film Certification
10. Raj Kapoor v. Laxman
11. State of Maharashtra v. Firoz Nadiadwala
12. State of Maharashtra v. Mohammed Hanif Quareshi

Books

1. Singh, Mahendra Pal. V.N. Shukla’s Constitution of India. Vol. [Volume Number], Eastern Book Company, 13th ed., 2020.
2. M P Jain, Lexis Nexis’s Indian Constitutional Law (HB) (2 Volumes), 8th ed. (Lexis Nexis, November 2022

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[1] Ramanatha Aiyar, P. The Law Lexicon Of British India, 1940.

[2] William B. Lockhart, Robert C. McClure, Literature, the Law of Obscenity, and the Constitution, Minnesota Law Review,1954.

[3] Obscene Publication Act, 1959, S. 13.

[4] Marvin Miller v. State of California, 1973 SCC OnLine US SC 156 : 37 LEd2d 419 : 413 US 15 (1973).

[5] R. v. Hicklin, (1868) LR 3 QB 360.

[6] Roth v. United States of America, 1 L Ed 2d 1498 : 354 US 476 (1957).

[7] Ranjit D. Udeshi v. State of Maharashtra, AIR 1965 SC 881.

[8] The Indian Penal Code, 1860, S. 292.

[9] Samaresh Bose v. Amal Mitra, (1985) 4 SCC 289.

[10] Ibid.

[11] Aveek Sarkar v. State of W.B., (2014) 4 SCC 257.

[12] Coleman A. Young v. American Mini Theatres Inc, 49 L Ed 2d 310 : 427 US 50 (1976).

The Role of Mediation in Insolvency Proceedings

INTRODUCTION

In the realm of insolvency proceedings, mediation has emerged as a pivotal tool for resolving disputes and facilitating effective negotiations between the parties involved. This article provides a comprehensive overview of the significance of mediation in insolvency proceedings and its potential impact on the future of the insolvency landscape.

In this article, we will see the role of mediation in the insolvency proceedings.

MEDIATION IN THE CONTEXT OF INSOLVENCY

Mediation, as a form of ADR, holds immense potential in the context of insolvency proceedings. It offers a structured and collaborative approach to resolving disputes, thereby fostering a conducive environment for constructive dialogue and negotiation. In the insolvency domain, where complex financial and legal issues often arise, mediation serves as a valuable mechanism for addressing conflicts and reaching mutually beneficial solutions.

BENEFITS OF MEDIATION IN INSOLVENCY PROCEEDINGS

Mediation in insolvency proceedings present a myriad of benefits, including:

1. Cost-Effectiveness:  Mediation offers a cost-effective alternative to traditional litigation, thereby reducing the financial burden on the parties involved and expanding the resolution process.
2. Preservation of relationship:By prompting open communication and co-operation, mediation helps in preserving relationships among stakeholders, which is particularly crucial in the context of insolvency where ongoing business relations may be at stake.
3. Confidentiality:The confidential nature of mediation allows parties to engage in candid discussions without the fear of sensitive information being disposed publicly, thereby safeguarding their interests.
4. Flexibility: Mediation provides a platform for addressing a wide range of issues, allowing for customized solutions that cater to the specific needs and concerns of the parties involved.

THE FUTURE OF MEDIATION IN INSOLVENCY PROCEEDINGS

As the insolvency landscape continues to evolve, the role of mediation is poised to become increasingly prominent. The following factors underscore the potential future impact of mediation in insolvency proceedings:

• Legal and Regulatory Support:With the recognition of mediation as a viable means of dispute resolution, legal and regulatory frameworks are likely to further endorse and promote the use of mediation in insolvency proceedings. This support will contribute to the mainstream integration of mediation as a standard practice in the resolution of insolvency-related conflicts.
• Enhanced Awareness and Education:The growing awareness of the benefits of mediation, coupled with targeted educational initiatives, will lead to a greater acceptance and utilization of mediation in the insolvency domain. Stakeholders will increasingly recognize the value of mediation in achieving efficient and amicable resolutions, thereby driving its widespread adoption.
• Industry-Specific Mediation Practices:The development of industry-specific mediation practices tailored to the unique dynamics of insolvency proceedings will enhance the efficacy of mediation in addressing complex financial and commercial disputes. These specialized approaches will cater to the distinct requirements of insolvency-related conflicts, further solidifying the role of mediation in this domain.

CONCLUSION

In conclusion, mediation stands as a pivotal force in reshaping the landscape of insolvency proceedings. Its inherent benefits, coupled with the evolving legal and regulatory support, position mediation as a catalyst for fostering constructive resolutions and preserving relationships amidst the complexities of insolvency. As stakeholders increasingly recognize the value of mediation, Its future in insolvency proceedings appears promising, heralding a new era of efficient and collaborative dispute resolution.

Author : SAHARSH SINGH, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at IIPRD.

Debate and Discussion over Film Title Copyright Are Highly Contentious

Introduction

Shepard Fairey, renowned for his pioneering stance in the early days of copyright legislation, articulated a powerful argument. He passionately contended that copyright regulations should be a wellspring of inspiration for creativity rather than a stifling impediment. In his view, the fundamental purpose of copyright was not to hinder but to cultivate the innovative spirit, igniting the flames of human imagination. Delving further into the realm of intellectual property protection, especially concerning integrated circuit (IC) layout designs, it becomes evident that a multifaceted shield is in place. This protective fortress encompasses various elements such as design patents, copyrights, trademarks, geographical indications, and the safeguarding of closely guarded trade secrets. However, a glaring void exists in the Indian legal framework, where the protection of trade secrets remains elusive due to the absence of well-defined regulations.

Copyright, as Fairey ardently championed, is a robust bastion that shelters a vast array of artistic expressions. Whether it’s the written word, the melodious notes of music, the captivating narratives of films, or the ethereal beauty of sound recordings, copyright extends its protective mantle over them all. Notably, it’s essential to differentiate between copyright and software patents. While software patents find their limitations concerning computer programs, copyright provides a sturdy fortress for creative works. In the realm of cinematic achievements, the endeavors of movie producers and authors are significant. Their relentless dedication to promoting their creations on a global stage, often culminating in prestigious awards, stands as a testament to their commitment. This pursuit of excellence, though, sometimes leads to the unique challenge of ensuring that movie titles, like any other creative work, are shielded from misappropriation, reducing confusion, and maximizing financial benefits. This distinction sets the stage for the core inquiry of this article, which probes into the intricate domain of whether movie titles are safeguarded by copyright rules.

Shepard Fairey’s vision of copyright as an enabler of creativity continues to resonate. In the labyrinth of intellectual property, whether through the protective aegis of copyright or the intricate dance of trade secrets, the tension between preserving creative ingenuity and nurturing it is an ongoing, dynamic dialogue. This article embarks on the journey of unraveling the nuanced layers of protection surrounding movie titles, aiming to provide clarity and insight into the complex interplay of creativity and legal safeguards.

There Is Copyright Protection For Movie Titles

A film’s name or label serves to distinguish it from other films. The title of the film is the first hint to the viewer that the dramatist has put a lot of thought into it. The film’s title correctly describes what could happen in the plot. The title distinguishes it from competitors and is one of the most essential factors in successful production and production companies. In the entertainment sector, registering titles with film organizations is standard practice. The title of a film is not considered to be a statement of an idea. The Copyright Act protects how ideas are conveyed rather than the ideas themselves.^[1] There is no copyright protection for ideas, and there is also no provision in the copyright rules that protects movie titles because copyright protection for ideas would hinder fresh invention and creativity.

What Is Its Economic Significance Intangible Property Rights Include Intellectual Property Rights?

These rights provide protection to the original creators/authors/owners. Just like any other tangible asset, intellectual property rights can be mortgaged, sold, leased, purchased, and licenced. If intellectual property theft isn’t reported, the original author/creator/owner will lose motivation and won’t be able to create another masterpiece. As a result, neither the author/creator/owner of the original work nor the government will be compensated. The government’s ability to improve the country solely through public funding, such as infrastructure development, will harm the economy. When you examine the intellectual property portfolios of the world’s industrialised nations, you’ll notice that they have a diverse range of intellectual properties that they may monetize for commercial development and economic success. If copyright is not secured, authors and artists will be unable to defend their work and prevent it from being misused.

Related Provisions

As we’ve just shown, the Copyright Act doesn’t prevent movie titles from being plagiarised. A trademark protects the brand name of any company. If the movie title is protected under the Trademarks Act of 1999, it can be protected from infringement if it is used without the owner’s express consent later, and if it isn’t, it can be protected under the act of passing off if the earlier user can be shown.^[2] The films’ titles are protected under the Trade Marks Act of 1999. The titles of the films are protected under Class 41 of the Trademarks Act of 1999, which covers entertainment services.

The Registration Of Titles By The Film’s Industry

Registration of titles with film organizations such as The Indian Motion Picture Producers’ Association (IMPPA) is a non-profit organisation that promotes filmmaking in India. It is sometimes known as the Association of Motion Picture and Television Program Producers (AMPTPP) or the Film Writers’ Association. The production of films in India is a common business practice in the entertainment industry, as previously mentioned. This is done in good faith to keep their film titles from being used without their permission. As stated in the preceding paragraph and further clarified in the following decisions, this practice is protected under class 41 of the Trademarks Act of 1999.

Trial Successes: Court Winning Cases

Association of Motion Pictures v. Fisheye Network Pvt. Ltd.

The plaintiff submitted a trademark application with the Association of Motion Picture and Television Program Producers and others in 2005 for the title “Thank You.” A title’s registration with an industry group does not guarantee that it will not be used by others. To qualify for statutory protection, the title must first be registered as a trademark. The plaintiff was aware that UTV had been using such a title since May 2005, and that it lacked copyright protection due to its lack of registration. If the court had issued an interim injunction at that point, the production house would have suffered losses.^[3]

Kanungo Media (P) Ltd. v. RGV Film

Kanungo Media (P) Ltd

The plaintiff, in this case, had previously developed a film called “Nistadbd,” which was later changed to “Nisshabd” due to astrological and numerological conditions. The defendant was also working on a film called “Nishabd,” which was slated to hit theatres in the next ten days. To realize his ambition of filming a film, the plaintiff had invested his entire life savings and received financial aid from friends, family, and relatives. The French government also gave the plaintiff a hefty monetary prize known as ‘FONDS SUD CINEMA.’ To meet one of the prerequisites for obtaining a grant for the film’s production, the plaintiff additionally brought on board M/S Artcam International, France as a co-producer. The producer petitioned the Central Board of Film Certification for clearance of the film title on 08/06/2005 through the Western India Film Producers Association, which was granted on 17/06/2005. The plaintiff claimed that the defendants’ use of the title was a deliberate attempt on the defendant’s part to smear his reputation by releasing a picture with the same title to profit solely from the title. The plaintiff claimed that he was entitled to the first use of the title since he applied for it before the defendant and that the defendant had no right to use the same title. The defendant has already invested a substantial sum of money in the creation and distribution of the picture.^[4]

According to the court, the plaintiff allowed the defendants to complete the film’s filming and post-production, and the plaintiff should have stopped them as soon as the defendants indicated that they were working on a film called “Nishabd.” The plaintiff will not be able to secure an injunction because it is far too late, and the defendants will incur huge losses. As a result, the lawsuit was dismissed, and the plaintiff was denied an injunction.

Bishwaroop Roy Choudhary vs. Karan Johar

On May 17, 2005

The plaintiff filed a trademark/title “KANK” registration under the Trade Marks Act Class 41. Neither party coined the term “KANK” on their own, according to the court. Long before the plaintiff and defendant pondered producing a movie out of it, people had been using the word “KANK.” Exclusive use permission would be granted only after a comprehensive investigation of who has used the mark for a longer period. The judiciary cannot employ any popular term entirely or exclusively. The defendant applied for trademark registration with the Trade Guild and the Registrar of Trademarks. He’d completed the film’s production, sold the music rights to Sony BMG Music Entertainment (India) Pvt. Ltd for Rs 5 crores, and sold a large number of copies in the market, so he was ready to release it in theatres. Because it would have resulted in severe losses for the defendant, the court could not grant the plaintiff an injunction at the time. When the plaintiff learned that the defendant was preparing to use the title for his new film through newspapers, trade guilds, or groups, he failed to utilize it and moved quickly. As a result, the plaintiff’s request for an injunction was denied, and the court ordered the distribution of the picture with the same name.

CONCLUSIONS

We’ve seen enough copyright infringements as a result of removing a film’s title. Rather than simply registering a film’s title with studios, it should always be protected as a trademark. To avoid losing sleep over the opponent’s rights and approaching the authorities when it’s too late, the injunction applicant must be watchful and keep a careful check on who is registering for the applicant’s film title with movie producers and the intellectual property office.

Author : Balveer Godara, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at IIPRD.

---

^[1] Digital Media Law Project. (2020, June 17). Retrieved October 25, 2021, from https://www.dmlp.org/legal-guide/copyright

^[2] Copyright infringement. (2021, October 10). Retrieved October 25, 2021, from https://en.m.wikipedia.org/wiki/Copyright_infringement

^[3] Legal Service India. (2019, July 5). Copyright of Cinematograph Films and Sound Recording – Video, song, Film. Copyright of Cinematograph Films and Sound Recordings. Retrieved October 25, 2021, from https://www.legalserviceindia.com/copyright/Cinematograph-Films.html

^[4] Sharf, Z. (2019, December 18). The 20 Most Controversial Films of the Decade. Retrieved October 25, 2021, from https://www.indiewire.com/gallery/controversial-films-decade-2010s/

Overview of Ticona Polymers, Inc. vs. Registrar of Trademarks

INTRODUCTION

The matter at hand involves an appeal coming from the Senior Examiner at the Registrar of Trademarks’ office rejecting a trademark application. This appeal is covered by Section 91 of the Trade Marks Act of 1999. Ticona Polymers intended to register the term “COOLPOLY” for two product categories, however their application was denied for two reasons: the proposed mark lacked distinguishing characteristics, and the words within the mark were deemed descriptive of the product.

WHAT IS A TRADEMARK?

According to Section 2(1)(zb) of the Trade Marks Act, 1999, a trademark is defined as a symbol that may be graphically expressed and has the ability to differentiate one individual’s products or services from those offered by others. This broad category of trademarks includes signatures, names, labels, headers, and other features.

WHAT IS DISTINCTIVENESS AND DESCRIPTIVENESS IN TRADEMARKS?

Section 9(1) of the Trade Marks Act of 1999 explains the absolute reasons for rejecting a trademark application, stating unequivocally that a mark that clearly describes the characteristics or features of products and services is ineligible for trademark registration. Nevertheless, Section 9(1) not only enforces a complete ban on registering descriptive marks but also incorporates a provision that permits such marks to be registered if they have acquired distinct recognition through previous use or are recognized as well-known trademarks.

FACTS OF THE CASE

The case revolves around an appeal to the Delhi High Court under Section 91 of the Act, stemming from a trademark application rejection. In this application, the appellant sought to register the term “COOLPOLY” for two specific classes of products: Class 1, which pertains to plastic and carbon molding materials used for creating molded plastic items, and Class 9, encompassing molded heat sinks for computers, their components, and molded electrical conductors. The Senior Examiner at the Registrar of Trade Marks’ office declined this application on October 26, 2020. The primary grounds for rejection were objections raised under Sections 9(1)(a) and 11(1) of the Trade Marks Act. These objections focused on the distinctiveness of the mark and the availability of equivalent marks in the trademark registration.

APPELLANT’S CONTENTIONS

The legal counsel for the appellant stated that the well-established policy of not dissecting a trademark into its many components during the registration review is widely acknowledged. Although Section 17(1) of the Trademarks Act clearly indicates that this idea pertains to cases of trademark infringement, it also applies to evaluating registration eligibility with required adjustments. Because the act of registering contains inherent benefits such as protection against infringement, the principle also applies in this case.

RESPONDENT’S CONTENTIONS

According to the respondent’s legal counsels, it is well-established legal principle that a simple combination of two common phrases or abbreviations, even if never before used, cannot be regarded a newly coined phrase. The terms in question in this case were “COOL” and “POLY.” This principle holds as long as the combined phrase conveys an identical meaning to the average individual, whether through visual or auditory means, as the separate words in their regular form. This principle had been upheld in prior legal cases, including E. Griffiths Hughes Ltd. v. Vick Chemical Co. and A.R. Khaleel And Sons v. Registrar of Trade Marks In India.

DELHI HIGH COURT’S OBSERVATIONS

In delivering its judgment, Justice Hari Shankar of the Delhi High Court underscored a fundamental principle: the assessment of a trademark should consider it as a cohesive entity rather than disassembling it into its constituent parts. This principle, firmly grounded in Indian trademark law, is not confined solely to cases of trademark infringement but also extends to the stage of trademark registration.

[Image Sources: Shutterstock]

With regard to the specific trademark under scrutiny, “COOLPOLY,” the court noted that this term lacks any apparent meaning within the English language and does not constitute a commonly used word. Consequently, it retains the capability to differentiate between the products of one entity and those of another if utilized as a trademark. The court also pointed out that the Registrar’s decision lacked clarification regarding the mark’s distinctiveness. Additionally, the court argued that even if the issue of descriptiveness had been raised, it would not be valid because “COOLPOLY” is a unique, newly coined word. Even when examining the words “COOL” and “POLY” individually, they do not describe the products covered by the Appellant’s application, such as plastic and carbon molding materials, in any way.

Consequently, the court overturned the Registrar’s decision, asserting that the Chief Examiner’s rationale for rejecting the mark lacked a legal foundation. The court instructed the Registrar to ensure the publication of the “COOLPOLY” trademark application in the Journal of Trade Marks.

ANALYSIS AND CONCLUSION

The “COOLPOLY” trademark case underscores the vital importance of evaluating trademarks as whole entities within the domain of intellectual property law. At the core of this ruling lies the Delhi HC’s firm support for the anti-dissection doctrine, affirming that trademarks must be evaluated as unified entities rather than deconstructing them into their constituent parts. The court’s decision in favour of the “COOLPOLY” trademark underscores the word’s absence of inherent meaning within the English language, a pivotal element in trademark distinctiveness. Significantly, the court rejects the idea of descriptiveness by asserting that “COOLPOLY” constitutes a freshly minted term. Even when examining its individual elements, “COOL” and “POLY,” they do not depict the goods encompassed in the application. This verdict not only reaffirms the necessity of holistic trademark evaluation but also highlights the broader role of trademarks in preserving the distinctiveness of brands and fostering innovation in the marketplace.

Author : Manya Manohar, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at IIPRD.

REFERENCES

• Ticona Polymers, Inc. Vs. Registrar of Trademarks, 2023 SCC OnLine Del 1234
• The Trademarks Act, 1999
• E. Griffiths Hughes Ltd. v. Vick Chemical Co., AIR 1959 Cal 654
• A.R. Khaleel And Sons v. Registrar of Trade Marks In India, AIR 1963 Mys 122
• https://cleartax.in/s/trademark-act-1999

Media trials: Misuse of Fundamental Right?

“I would rather have a complete free press with all the dangers involved in the wrong use of that freedom than a suppressed or regulated press”

–Jawaharlal Nehru

Abstract

The media, touted as the societal bridge and the fourth pillar of democracy, risks transforming into a purveyor of sensationalism under the guise of journalism. Recent events underscore a disturbing trend where commercial media outlets, driven by the pursuit of TRPs and competitive fervour, metamorphose into pseudo-public courts. This shift sees them orchestrating trials sans concrete evidence, undermining not only public perception but also the integrity of judicial proceedings. While Article 19(1)(a) grants media the right to free speech and expression, Article 19(2) imposes reasonable restrictions. Alas, the stark reality reveals a blatant disregard for these restrictions, as media soap operas present a distorted narrative, subtly but detrimentally influencing public opinion. This paper delves into the detrimental impact of media trials on society and, specifically, on the accused. Examining cases like Sushant Singh Rajput, Arushi Talwar, and Jessica Lal, it sheds light on the media’s misuse of granted rights for audience acquisition and TRP gains.

Introduction

The media, often hailed as the societal bridge and the fourth pillar of democracy, stands at a critical juncture. The recent trend of sensationalism in the guise of journalism threatens the very fabric of our society¹. The emergence of quasi-illegitimate trials, fuelled by baseless assumptions, raises alarming questions about the media’s role in shaping public discourse.

While the Indian constitution does not explicitly grant freedom to the press, Article 19(1)(a) ensures the freedom of speech and expression. Despite lacking specific rights, judicial precedents

¹ Arunav Talukdar, “Media Trial and right to freedom of speech and expression: An Analysis”, 2018, p 22

have acknowledged the underlying principles. However, the judiciary has yet to address the detrimental impact of media’s negative commercialization on fundamental human rights.

In the pursuit of higher TRP ratings and staying ahead in the competitive race, commercial media channels now engage in trials based on assumptions and suspicions rather than solid evidence.

This not only distorts public opinions but also jeopardizes judicial proceedings. Legal cases such as Romesh Thapar vs State of Madras², Union of India v Association for Democratic reforms³,recognize the freedom of the press and its right to express opinions. However, Article 19(2) fails to address the violation of one’s reputation in the context of media trials, operating within the reasonable restriction framework.

The crux of the matter lies in the media’s ethical decline, driven by the pursuit of higher TRP and sensationalism. The prevailing ethos prioritizes drama over truth, where the more dramatic a topic, the higher the TRP, regardless of the actual veracity. Urgent measures are needed to curb the media’s actions before irreversible damage is done to the fundamental human rights of individuals. It is imperative to act swiftly, as the current trajectory poses a threat that cannot be ignored any longer.

The Witch Hunt

The litmus test for the legitimacy of media rights hinges on the response of democratic society to the inundation of debates, deliberations, and segments presented by the paid media. While proponents extol the media as the fourth pillar of democracy, the Hon’ble Supreme Court, “with sagacious foresight, cautioned against an unchecked freedom of the press that could plunge society into disorder and anarchy” ⁴, a prescient prophecy validated by the media sensationalism surrounding cases like Sushant Singh Rajput⁵, Aarushi Talwar⁶, Jessica Lal⁷, and others.

Undoubtedly, the media’s ostensible duty is to disseminate facts to the public devoid of assumptions, speculations, opinions, or suspicions that could sway public opinion or impede judicial proceedings. However, the reality often diverges, with media trials undeniably encroaching on the right to a fair trial and impartial investigation. The contention that media

² Romesh Thappar v The State of Madras (1950) AIR 154. “Freedom of speech and of the press lay at the foundation of all democratic organisation, for without free political discussion, so essential for the proper functioning of the process of popular government, is possible.

³ Union of India v Association of Democratic Reforms (2002) 5 SCR 294

⁴ In Re: Harijai Singh and Another, (1996) 6 SCC 466, AIR 1997 SC 73.

⁵ Prerna Lidhoo, “Arushi Talwar to Rhea Chakraborty: A tale of two media trials and zero lessons learnt”(The wire,01 September 2020) <https://thewire.in/media/rhea-chakraborty-sushant-singh-rajput- aarushi-talwarmedia-trial>

⁶ Dr. Smt. Nupur Talwar v State of UP And Anr. On 12 October 2017

⁷ Manu Sharma v State (NCT of Delhi) (2010) 6 SCC 1

trials operate within the bounds of the constitution is belied by the undeniable disruptions and prejudices they inject into legal processes⁸.

While Supreme Court verdicts have ostensibly championed the freedom of the press⁹ and its right to hold opinions akin to any citizen, the insidious influence of media trials persists¹⁰. These quasi-judicial proceedings, operating under the guise of “public courts,” leverage constitutional provisions to shape a symbiotic relationship between the media and its silent partners, steering public attention toward issues of their choosing.

Freedom of Speech and Expression

At the core of media’s purported responsibility lies the delivery of authentic and informative facts, as granted by the Indian Constitution. However, the evolution of media over the years has seen an unprecedented expansion of its scope, particularly in the digital era¹¹. The Sushant Singh Rajput case serves as a poignant example where the media, wielding the fundamental right of speech, callously tarnished the characters and relationships of the deceased and accused for the sake of garnering higher TRP.

While constitutional provisions exist to impose reasonable restrictions on media excesses, the precarious distinction between “delivery of information” and “trial by media” remains. The media, despite lacking the competence and authorization to conduct trials, flouts norms established by the Press Council of India with an arrogance that disregards the principles intended to safeguard fair and unbiased reporting¹².

In essence, the media’s overreach, propelled by sensationalism and a relentless pursuit of ratings, threatens the very foundations of democracy and justice. The delicate equilibrium between freedom of the press and responsible reporting must be restored, recognizing that an unchecked media can undermine the principles it purports to uphold.

The Unwarranted trial and its impact

⁸ In Zahira Habibullah Sheikh v. State of Gujarat. (2004) 4 SCC 158

“It is a basic principle of criminal jurisprudence that “every accused is presumed to be innocent unless the guilt is proved”. However, the manner in which people accused of crimes are portrayed in popular media, and the consequences that these people have to suffer thereafter, in almost all cases notwithstanding the final verdict of the court of law, is and always been, a matter of concern for all democratic, republican systems based on a written constitution and rule of law.” ‘A Comparative Survey of the Law of Bail in India and Canada’ by Khagesh Gautam & Sebastien Lafrance in the book titled “Taking Bail Seriously- The State of Bail Jurisprudence in India.”

⁹ Sakal papers v Union of India

¹⁰ Sakal papers v Union of India

¹¹ Mr. Nilesh Navalakha v Union of India (2020) PIL ST no. 92252

¹² The press is expected to keep in mind the principle of natural justice and fair investigation in any case.

Publicity, whether deemed good or bad, serves as the lifeblood of the media industry. Each click on a link, regardless of personal sentiments towards the news, translates into revenue. Every second of viewership, whether in agreement or opposition, contributes to the financial success of media outlets. The undeniable truth is that media trials, while violating fundamental rights, are thriving as a lucrative source for generating TRP. Despite being a blatant infringement we willingly tune in to witness the drama and follow the latest developments.

Media trials wield an unparalleled power to shape public emotions and, to a certain extent, influence judicial sentiments. Transforming tragedies into sensational dramas, they navigate the delicate balance between news reporting and entertainment. The cherished principle of “Innocent until proven guilty” safeguards the right to a fair trial, but restraining the media from conducting parallel trials or holding them accountable for defamation¹³ proves to be a formidable challenge.

Furthermore, it can be argued that the right to information, even if based on false assumptions, is a fundamental right of the people. This exercise of rights, however, subtly influences judges, creating an indirect but detrimental impact¹⁴. Despite legal precedents deeming inferences during the pre-trial period a direct violation of press immunity¹⁵ and contempt of court¹⁶, the media continues its relentless pursuit of drama and TRP at the expense of the dignity and reputation of individuals.

Conclusion

In conclusion, the media, as a crucial communication medium and a pillar of democracy, occupies an indispensable role in individuals’ lives. However, this role comes with the responsibility to adhere to certain ethical boundaries while exercising their rights. The pursuit of TRP should not permit the abandonment of principles or the abuse of the rights of others. Even if individuals are ultimately acquitted, the emotional and physical toll endured during media trials remains irreversible. The high-profile cases like SSR or Aryan Khan’s drug trial exemplify how media, driven by a thirst for drama and TRP, is willing to tarnish reputations solely for attracting an audience.

¹³ Sahara India Real Estate Corp. Ltd. v. Securities & Exchange Board of India, (2012) 6 MLJ 772

¹⁴ In Re: P.C. Sen, it was stated that “genuine risk of prejudicial remarks made in newspapers or by any mass media which must be guarded against is the ―impression that such comments might have on the Judge‘s mind or even on the minds of witnesses for a litigant.”; Rao Harnarain vs Gumani Ram (1958) AIR P H 273

¹⁵ Y.V. Hanumantha Rao v K.R. Pattavhiram and Anr (1975) AIR AP 30; Leo Roy Frey v R. Prasad and Ors (1958) AIR P&H 377

¹⁶ In Re: P.C. Sen (1970) AIR SC 1821. Contempt of Courts Act, 1971, Section 3- Innocent publication and distribution of matter not contempt

Moreover, our justice system upholds the fundamental right to a fair trial, coupled with the principle of natural justice that presumes an individual innocent until proven guilty. The actions of the media, which often run counter to these principles, must be subject to reasonable restrictions before irreparable damage is done. As society evolves, it is imperative to strike a balance between the media’s right to information and the preservation of individuals’ rights, ensuring a fair and just legal process that withstands the sensationalism of media trials¹⁷.

¹⁷Law Commission of India, 200th report on Trial by media; free speech versus fair trial under criminal procedure (amendment to the contempt of courts Act, 1971), (17th Law Commission of India)

Author : Vaishali Prasad, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at IIPRD.

Impact of AI on Trademark Law: Recent Developments and Future

Introduction

In this rapidly changing world of Intellectual Property law, artificial intelligence is transforming trademark law by challenging long-held beliefs. The intersection between trademark law and artificial intelligence providing excess to opportunities and challenges, making a deep understanding of both present developments and the potential long-term effects. Artificial Intelligence has transformed trademark management processes by offering exceptional levels of efficiency and accuracy in work such as trademark monitoring, enforcement and research. These technologies carry on to proceed at a never-before-seen pace. Trademark law experts can efficiently see conflicts and infringement by the use of artificial intelligence. AI inspired solutions that facilitate accurate browsing of long databases. However passionate digital platform observation given by AI powered real time brands monitoring solutions enables trademark owners to safeguard their companies in a progressively connected world However, these types of evolutions also raise challenging legal issues, such as how to resolve legal ambivalence, who is liable for trademark infringement when AI creates the brand, and larger ethical and legal repercussions. In light of this, as AI keeping up to transforming the world of trademark law. It is imperative to look at recent legislative and legal changes as well as possible future challenges and opportunities.

The Development of AI in Trademark Administration

Artificial intelligence (AI) has transformed traditional trademark management techniques by providing previously unheard-of levels of efficiency and accuracy. Let’s examine the salient features of the development of AI in trademark management:

• AI-Powered Trademark Searching: This innovation has completely changed the field of brand protection. With unprecedented speed and accuracy, trademark practitioners may now do thorough searches across enormous libraries of already-registered trademarks and other data. Artificial intelligence systems are highly skilled in discerning minute resemblance and variations among the trademarks, making it feasible to quickly identify the possible disputes. This functionality reduces the chances of unintentionally infringing the already-registered trademarks while also streamlining the trademark clearance process.
• Real-Time Brands Monitoring: Proactive brands security has now entered a new phase with the introduction of AI brand monitoring technologies. In order to find out the any trademark infringements in real-time, these systems continuously scan a variety of online venues, such as social media networks, e-commerce websites, and digital marketplaces. Trademark owners may quickly detect unlawful usage, counterfeit goods, and brand dilution by utilizing artificial intelligence (AI), which enables prompt intervention and enforcement actions. Maintaining brand integrity and stopping illegal activity on digital platforms require real-time brand monitoring.
• 
  Expanded Enforcement skills: Thanks to AI technologies, trademark owners can now successfully encounter infringement by having access to expanded enforcement skills. Large amounts of data can be analysed by AI algorithms to find out trends in unlawful distribution, counterfeit production, and trademark infringement. Furthermore, the automation of enforcement procedures, including the issuance of takedown requests, cease-and-desist letters, and court filings, is made possible by AI-powered enforcement tools. AI helps trademark owners to spend resources more effectively and resolve trademark disputes more quickly by automating repetitive operations and streamlining enforcement efforts.

Obstacles and Legal Matters to Consider:
1. Liability Attribution for Trademarks Generated by AI:
In trademark law, determining culpability for AI-generated trademarks is a major challenge. When AI systems generate trademarks on their own without human assistance, ownership and accountability issues come up. In order to create frameworks that fairly distribute culpability among AI developers, users, and the AI systems themselves, courts must address agency and accountability issues.
2. Ambiguities in the Trademark Infringement: As an AI-generated material proliferates, conventional ideas of trademark infringement become more nuanced. It gets harder and harder to tell the difference between authentic works and automated work when AI algorithms produce logos, slogans and other type of trademark-related materials. The challenge for courts is to modify the current legal frameworks to take into account the subtle of AI-generated trademarks and provide precise standards for infringement.

3. Ethical and Regulatory Implications: Adding AI to trademark law creates more ethical and regulatory issues than just the legal ones. Concerns around the algorithmic bias, data privacy, and the moral of the application of AI to intellectual property management must be addressed by stakeholders. The duty of creating rules and regulations to guarantee the ethical development and application of AI technologies within the trademark ecosystem falls to regulatory authorities
4. Human Involvement Requirements: Historically, trademark law has mandated that people be present during the trademark invention and registration process. But as AI systems advance, it gets harder to determine how much human involvement is required to qualify a trademark. To what degree AI-generated trademarks should be eligible for registration and protection, courts and legislators must decide on this matter.

5. Preservation of Consumer Trust: Concerns concerning the preservation of consumer trust are raised by the increasing use of AI in trademark administration. There is a chance of mistakes or oversights when AI algorithms are employed to automate processes like trademark monitoring and searching, which could erode customer trust in the authenticity of trademarks. In order to keep customers’ faith in the brand, it is imperative that AI-driven procedures are transparent, accountable, and accurate.

6. International Harmonization: Reaching international harmonization is difficult due to the international scope of trademark law and the quick development of AI technology. Attempts to provide uniform norms and guidelines for AI in trademark law are complicated by differently shaped legal frameworks and approaches to AI regulation in different countries. In order to enhance international mutual recognition of intellectual property rights, unify legal concepts, and ease information transfer, collaborative actions are required.

Future Repercussions and considerations:

• Development of Ethical AI: As AI continues to be important to trademark law, it is difficult to ensure that AI is developed ethically. The ethical use of AI technology, taking into account factors like algorithmic bias, neutrality and transparency must be given top preference by the stakeholders. In Trademark supervision, we can reduce possible dangers and can preserve equity and justice by encouraging the moral AI development techniques.
  
• Continuous Monitoring and Adaptation: Keeping up with the latest developments in trademark law requires constant observation and adjustment as AI technologies advance and new difficulties appear. Trademark experts need to be on the lookout, always evaluating how AI is affecting trademark management procedures and modifying their plans as necessary. Trademark experts may maintain the integrity of intellectual property rights in the digital era and successfully traverse the ever-changing field of AI in trademark law by remaining vigilant, adaptable, and knowledgeable.
• Regulatory Frameworks: As AI becomes more and more prevalent in trademark law, strong regulatory frameworks that both handle new issues and promote innovation are required. Legislators must work with technologists, legal professionals, and business stakeholders to pass laws that give clarity on matters like data protection, liability attribution, and AI governance. Regulatory systems can encourage responsible behaviour by defining precise norms and principles.
• Adaptation and Innovation: To successfully traverse the transforming world of artificial intelligence in the trademark law, trademark experts must hold adaptation and innovation. To fully utilizing the AI while managing trademark portfolios, interaction with AI technology, ongoing learning, and the implementation of better practices are crucial. Trademark experts can improve brand safety efforts and streamline trademark management procedures by excepting creative practices and remaining up to date with technology advancements.
  

Cooperation and Knowledge Sharing: To successfully managing the critical issues raised by AI in trademark law, collective methods and knowledge-sharing programs are crucial. It is important that stakeholders from the fields of academics, government, industries and civil society unite in order to share best practices, perspectives, and work together in research and development projects. By uplifting cooperation and information exchange, we might all work together able to solve new problems, stimulate creativity, and enhance the ethical use of AI to trademark management.

Conclusion  

In summary, the incorporation of artificial intelligence (AI) into trademark law signifies a significant change in the intellectual property environment, characterized by both revolutionary possibilities and complex obstacles. Recent advancements have demonstrated how AI can improve trademark administration by facilitating effective searches, providing real-time monitoring, and improving enforcement capabilities. But these developments also bring with them difficult legal issues, such as attribution of blame disputes, unclear trademark infringement claims, and wider moral and legal ramifications. In order to effectively navigate the changing trademark landscape going forward, proactive adaptation and collaboration are essential. Stakeholders need to plan ahead for technology breakthroughs, strike a balance between innovation and intellectual property protection, and encourage the development of ethical AI.

Through the implementation of cooperative strategies including as international harmonization initiatives, interdisciplinary cooperation, and stakeholder engagement, the trademark ecosystem can effectively tackle the diverse issues raised by artificial intelligence (AI) while optimizing its potential advantages. Ultimately, parties involved may guarantee that trademark law continues to be strong, equitable, and successful in protecting intellectual property rights in the digital era by embracing responsible innovation and respecting the values of openness, accountability, and fairness.

Author : Astha Sharma, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at IIPRD.
 

Bibliography

• Lee Curtis, a. R. (2020, june ). Trademark Law Playing Catch-up with Artificial Intelligence? Retrieved from WIPO MAGAZINE: https://www.wipo.int/wipo_magazine_digital/en/2020/article_0001.html
• Wills, K. (2022). AI around the World: Intellectual Property Law Considerations and beyond. Journal of the Patent & Trademark Office Society, 186.
•  Batty, Rob, Trade Mark Infringement and Artificial Intelligence (August 16, 2021). New Zealand Business Law Quarterly (Forthcoming),http://dx.doi.org/10.2139/ssrn.3978248^[1]
• Moreland, Anke and Vieites Novaes de Freitas, Conrado, Artificial Intelligence and Trade Mark Assessment (October 29, 2019). Moreland, A. & Freitas, C. (2021), Artificial intelligence and trade mark assessment, in Hilty, R., Liu, K-C. & Lee, J-A. (eds.), Artificial Intelligence & Intellectual Property, Oxford University Press, p. 266 – 291, Available at SSRN: https://ssrn.com/abstract=3683807
• Gangue, Dev S., Eye, Robot: Artificial Intelligence and Trade Mark Registers (October 10, 2019). Forthcoming in N. Bruun, G. Dinwoodie, M. Levin & A. Ohly (eds.), Transition and Coherence in Intellectual Property Law, (Cambridge University Press, 2020),  https://ssrn.com/abstract=3467627

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Eye Witness Testimony: An Absolute Proof

Abstract

The article delves into the critical examination of two key pieces of evidence in criminal trials: eyewitness testimony and extra-judicial confessions, underlining their significance and limitations within the Indian legal framework.

Eyewitness testimony, often considered the cornerstone of evidence, is meticulously dissected. While it’s deemed crucial for trial quality, inherent flaws such as memory lapses, observation errors, and external influences are acknowledged. The landmark case of Vikas Kumar Roorkewal v. State of Uttarakhand & Ors is cited to exemplify the challenges witnesses face, particularly when threatened or intimidated by influential parties. Despite its vulnerabilities, the judiciary emphasizes protecting witnesses’ rights and ensuring a fair trial.

Conversely, the article scrutinizes the evidentiary value of extra-judicial confessions, citing Sahadevan V. State of Tamil Nadu as a pertinent case study. These confessions, while potentially compelling, are deemed weaker evidence, necessitating thorough examination for voluntariness and truthfulness. The Supreme Court’s stipulations regarding their reliability, including corroboration and consistency with circumstantial evidence, are outlined.

Moreover, critical analyses of both forms of evidence highlight their advantages and shortcomings. While eyewitness testimony may be more inherently reliable, extra-judicial confessions can offer corroborative support when consistent with other evidence. The article underscores the judiciary’s role in discerning the credibility of witnesses and the necessity of adhering to procedural guidelines to ensure justice is served.

Ultimately, the conclusion emphasizes the intricate nature of testimonial evidence, urging courts to integrate social scientific insights into their procedures. By upholding standards of reliability and fairness, the criminal justice system can effectively fulfill its mandate, ensuring that witnesses truly serve as the “eyes and ears of justice.”

INTRODUCTION

An English philosopher, Jeremy Bentham rightly stated that ‘Witnesses are the eyes and ears of justice’ which is basically important for the quality of the trial process and by which the case has been built concretely at the court.

The most common form of direct evidence which is the eye-witness testimony is the most important source which can be taken as a piece of absolute evidence for the process and is covered under Section 3 of the Indian Evidence Act[1]. A person who has direct observation of a crime in progress and direct knowledge of the accused committing the act through direct proof is referred to be an eyewitness. In these circumstances, the court is not required to use common sense to determine whether the circumstantial evidence is reliable.

As there are always two sides to the same coin, here also there are two sides that can be taken into consideration for the eye-witness testimony. On the one side, eye-witness testimony is found to be credible and trustworthy but on the other side, it contains inaccuracies and exaggerations as there are various errors and omissions on account of lapse of memory, poor power of observations, or inability to recount and recite accurately. There are various reasons why eye-witness testimony can’t be relied upon like in the case of the testimony given by an eye-witness who has a criminal record.

Whereas the extra-judicial confessions are covered in Section 24 of the Indian Evidence Act[2]. They are the confessions that are made by the party to or before any private individual which even includes a judicial officer in his private capacity and a magistrate, not empowered to record the confession under section 164 of the Crpc[3] and can be treated as a corroborative piece of evidence.

CASE ANALYSIS

Now, the fact about which piece of evidence can be treated as an absolute piece of evidence is analysed as follows:-

There are a series of cases that proves the evidentiary value of the both and can also be taken as an absolute piece of evidence. Firstly the recent and landmark case of Vikas Kumar Roorkewal v. State of Uttarakhand & Ors[4] will be taken to discuss whether the eye-witness testimony is an absolute proof or not and by the help of this case the researcher will discuss the factors affecting the evidentiary value of the eye-witness testimony.

For the extra-judicial confession, the researcher has taken the case of Sahadevan V. State of Tamil Nadu to analyse the relevancy of the extra-judicial confession.

CASE-1: VIKAS KUMAR ROORKEWAL V. STATE OF UTTARAKHAND, 2011

This landmark case basically talks about the integral role played by the eye-witnesses in the criminal justice system and also talks about the various measures used for protecting the right of witnesses for the fair trial.

In this case, the eye-witness was facing threats from the accused who was involved in the murder of the engineer and the accused has a high profile and was a influential person. Also because of the influential image, even the police was somehow incapable to do investigation of the crime. Even the other witnesses were unable to present before the court to tender their testimonies because of the threats and due to this the witnesses faced mental pressure and even left the city due to fear.

The supreme court closely analyses the situation and stated some points which needs to be followed by the high courts and trial courts, which are as follows:-

1. Whether the eyewitness was subjected to undue influence when testifying in court, and
2. Whether the eyewitness was subjected to undue influence when testifying in court, and
3. Whether there was any non-deferral that would allow subsequent witnesses to provide evidence on comparable facts, tailoring the testimony to circumvent the defence approach
4. Whether the trial could be delayed and witnesses might not be available in circumstances where deferral is permitted.

This judgment explains the paramount importance of the eye-witnesses and ensures the protection of justice so that the accused would be punished as properly as possible.

As there are several factors that somehow reduce the value of the eye- witness testimonies and which ultimately amounts to injustice. The factors can be stated as follows:-

1. Being in highly stressful situations at a crime scene or while going through the identification process.
2. due to the presence of weapons at the crime scene, fear or tension.
3. Mental state of the identifier
4. mental injury
5. The criminal is using a mask, wig, or other form of disguise.
6. any racial discrepancy between the suspect and the witness.
7. During the commission of a crime or the identification process, the witness only has a brief viewing period.
8. The condition of the witness’s eyesight.

As the testimony provided by the witness will not be reliable in that case. As also in the case of Ishaque Mian v. State of Bihar[5], it was stated that the evidence of the eye-witness will not be reliable during the event of low light or the event took place on a dark night. The same interpretation can be seen in the case of the State of UP v. Jogeshwar[6], as there is the involvement of only a small kerosene lamp in the dark night which ultimately proves that the identification would be inherently difficult for the eye-witness and no reliance should be placed upon them.

CASE-2: SAHADEVAN V. STATE OF TAMIL NADU, 2012[7]

This recent case talks about the evidentiary value of the extra-judicial confession.

In this case, the accused has made a confession to the person about the murder and then afterwards he denied it. Also, there are no eye witnesses in the particular case so therefore the complete chain of circumstances were not proved as there was no direct evidence available for the same.

The Supreme Court has stated some points regarding the same which are as follows;

1. The extra-judicial confession is in itself weak evidence and it has to be examined with greater care and caution.
2. It should be made voluntarily and should be truthful.
3. It should inspire confidence.
4. If an extrajudicial confession is supported by a series of convincing circumstances and is further corroborated by the other prosecution evidence, it has additional credibility and evidentiary value.
5. For an extra-judicial confession to be the basis of conviction it should not suffer from any material discrepancies and inherent improbabilities.
6. Such statement essentially has to be proved like any other fact and in accordance with law.

As in the case of Chattar Singh v. State of Haryana[8], it was clearly stated that the value of the extra-judicial confession can be determined by analyzing that the accused is the free man at the time of the confession and its evidentiary value at the time of confession on the veracity of the witness to whom it was made.

The voluntariness of the extra-judicial confession is based upon the facts and circumstances of each case. Also, as per section 24, it is clear that the confession can’t be used against the accused till the time the court is satisfied with the confession.

Also, any confession made by the way of shouting on the roads, or before the stock witnesses of the police, or any hearsay extra-judicial confession cannot be termed as an admissible extra-judicial confession.[9] Also, the telephone calls made to media houses amount to an extra-judicial confession.

Extra-judicial confessions which voluntarily made and if they are fully consistent with the circumstantial evidence establish the guilt of the  accused[10].

ILLUSTRATION

The illustration is about a person ‘A’ who has a criminal record and witnesses a crime committed by the X. So, the testimony given by the eye-witness will be reliable or not. So the answer is, Yes the testimony given by the person having criminal record can be relied in the situation. This can be analysed from the case of Jwala Mohan & Ors. v. The State[11].

CRITICAL ANALYSIS

Both pieces of evidence themselves hold their evidentiary value but the eye-witness testimony is a more reliable and stronger piece of evidence. Despite the fact that the eye-witness testimony also has various inconsistencies but it is more reliable than the latter.

There are a series of cases that talk about their advantages and disadvantages but the major clarity can be found in the cases of eye-witness testimony.

For example in the Sahadevan Case, there was no eye witness to the murder which leads to a lack of clarity of facts.

Also, In the case of State of Punjab v. Bhagwan Singh,[12] it was held by Supreme Court that extra-judicial confession can be relied on only when it is clear, consistent and convincing.

In the case of Balwinder Singh v. State, the Supreme Court ruled that in the event of an extrajudicial confession, the court must determine the witness’s credibility and determine whether or not they can be trusted.

The main emphasis for the analysis is on the case of Y.I. Patel v. State of Gujarat in which it was held that Testimony of eye witness cannot be disbelieved particularly when it is tested with cross-examination.

CONCLUSION

The testimony scenario always involves more than just the knowledge of the witness since it also involves the intricate rhetorical, social, and ethical facets of human communication. By understanding this, we are actually rediscovering features of testimony that have previously received far greater attention in other contexts and at different times.

When employing and assessing eyewitness procedures like line-ups, law enforcement and the courts should adhere to the guidelines made by social scientists. Courts have the power and duty to provide judges with the necessary instructions, to reject evidence that doesn’t meet minimal standards of reliability, and to work with other stakeholders in the justice system to enhance the criminal justice system.

If the witness is unable to serve as the court’s eyes and ears, the trial becomes negative symptoms and paralysed, and it is no longer capable of being a ultimate justice.

Author : Anchal Gupta, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at IIPRD.

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[1] The Indian Evidence Act, 1872, s. 3.

[2] The Indian Evidence Act, 1872, s. 24

[3] The Code of Criminal Procedure, 1973, S. 164

[4] Vikas Kumar Roorkewal v. State of Uttarakhand & Ors, [2011] 2 SCC 178

[5] Ishaque Mian v. State of Bihar, 2007 CrLJ (NOC) 299

[6] State of UP v. Jogeshwar, AIR 1983 SC 349

[7] Sahadevan v. State of T.N., (2012) 6 SCC 403

[8] Chattar Singh v. State of Haryana, AIR 2009 SC 378

[9] Girdhari Singh v. State of Rajasthan, (2010) 85 AIC 856 (Raj-DB)

[10] Gokaraju Venkatanarasa Raju v. State of A.P.  (1993) 3 Crimes 235.

[11] Jwala Mohan & Ors. v. The State, AIR 1963 CriLJ 404

[12] State of Punjab v. Bhagwan Singh

Defining Digital Assets for Private Law: A Setback for Private Law cum Public Law Countries

Abstract

The UNIDROIT Principle on Digital Assets and Private Law was adopted by the UNIDROIT Governing Council at its 102nd session (10-12 May 2023). These comprise guidance and best practices for legislators in developing the private law framework for transactions involving digital assets. These ideas stand for one of the seven guidelines are one of UNIDROIT’s many efforts to simplify how developing technologies are treated under private law internationally. The principles do not address the regulatory framework that should be applied to digital assets or other related private law matters because they were meant to be drafted in an organizationally neutral and technology jurisdictional matters of UNIDROIT projects to simplify global private law approaches to emerging technology treatment. The principles do not address the regulatory framework that should be applied to digital assets or other related private law matters because they were meant to be drafted in an organizationally neutral and technology jurisdictional manner.

Introduction

The International Institute for the Unification of Private Law (‘UNIDROIT’) is an independent intergovernmental organization that works towards the harmonization and modernization of private law between states.[1]We are restricted in this article to discussing the definition of “digital asset.” The exercise of proprietary rights over such assets is significantly affected by this definition, which serves as the foundation for the principles.[2] The concept is applicable to “digital assets,” which are defined as any “electronic record” that can be put under “control.”

 “Electronic record” means information which is:

• stored in an electronic medium and,
• capable of being retrieved. 

Control is the key concept under the principles, as it also forms the basis of the other legal consequences (as discussed below). A person is generally considered to have control if they have:

The exclusive ability to prevent others from obtaining substantially all of the benefit from the digital asset (i.e ., negative control):

• The ability to obtain substantially all benefits from the digital asset (i.e. positive control);
• The exclusive ability to transfer that positive and negative control to another person:
• The ability to identify themselves as having the powers listed above.
• There are also additional nuances included, for example, to address the situation where a person has contested to share control.[3]

This definition has the potential to include a range of scenarios that are not typically digital assets. For instance, it might apply to an email, loyalty points within the video game, or a domain name, since these are all electronic records that can be controlled. Moreover, the breadth and specifics of this definition are crucial because they will shape how easily member states can adopt and put into practice.

Scrutiny

Indeed, UNIDROIT has put forth a comprehensive definition of digital assets, but implementing this definition presents significant challenges. In our opinion, these challenges can be categorized into two paradigms. The first set of challenges is global, and not dependent on any specific jurisdiction. It seems necessary for the Digital Assets Working Group to make revisions to the Principles document to address concerns in this category.

The second set of challenges pertains to local jurisdictions. These issues arise for two primary reasons. First, local laws, referred to as “other law” in the Principles, have previously adopted their definitions of digital assets that may conflict with the Principles’ definition. Second, the structure of existing local laws does not readily allow individuals to incorporate these new definitions into their framework.

Challenges of Implementation

It is explicitly stated in Principle 3(3) that digital assets are subject to all other laws, that is, any laws within a given State that are not “Principle Laws” as described in Principle 2(3). Principle 3(3) provides a number of examples of both contract law and property law concerns for this reason. It is not intended for the list to be exhaustive or limiting. It is emphasised once more that these principles only address private law concerns pertaining to digital assets; they do not address rules that must be upheld by public authorities, which could be referred to as “regulation” or “regulated power” in any given jurisdiction. Furthermore, these guidelines only address a narrow portion of jurisdiction.[4]

Indian laws concerning digital assets combine both public and private law principles. Unlike the UNIDROIT Principles, which mainly apply to private law, it is challenging for these laws to adopt a definition of digital assets that solely suits private law.

For instance, the Information Technology Act, 2000, regulates private law aspects of electronic records but also contains public law provisions for virtual assets. Trying to incorporate the UNIDROIT Principle’s definition of digital assets into this framework is impractical and could lead to over-regulation and compliance burdens.

The UNIDROIT principles don’t address the challenges of incorporation in such mixed legal systems. They offer three implementation strategies but don’t account for scenarios where laws contain both public and private law provisions, as seen in India.

A thorough study of incorporation is needed to understand how these principles can be effectively integrated into domestic law. The flexibility for incorporating these principles is limited in mixed law jurisdictions like India, where regulators face the challenge of choosing a suitable method of incorporation, differentiating between public and private law, and educating judicial authorities on these principles and digital asset definition.

Regardless of the representation or purpose of the parties dealing in these assets, any proprietary elements of an asset linked to a digital asset may be governed by the rules of the other legislation already in force. As an illustration, a person (vita) may produce a digital asset (V-AFT) that is kept and managed via a distributed, public, permission less blockchain ledger. Alpha may represent in writing and/or verbally that she wants VNFT to uphold all of her copyrights with regard to a musical piece that she has created. Furthermore, Vita may deal with others (beta) in which they consent that Vita will assign her copyright to Beta by transferring the VNFT, and that Vita may then reassign the copyrights to other parties by transferring to them.Regardless of Vita’s intention to tokenize her copyrights, the applicable copyright law will determine whether transferring the A-NFT constitutes a valid assignment of the copyrights in question, as well as whether Beta can subsequently re-assign these copyrights by re-transferring the VNFT.

CONFLICTING DEFINITION WITH OTHER LAWS

In India, there’s an issue related to conflicting definitions of digital assets in the legal framework. While Indian Law does not provide a specific definition for digital assets, the Income Tax Act of 1961 was amended in 2022 to tax virtual digital assets, introducing its definition. This definition is narrower than the one found in the UNIDROIT Principles, excluding Indian and foreign currency, which notably excludes foreign Sovereign Digital Currencies like the Digital Yuan.

The 1961 Act allows the Central Government to exclude certain asset classes from this definition, while they have exercised. The exclusions follow a dynamic, incremental approach with ongoing modifications by the Central Government. While this approach is rooted in public law, it holds significance for private law as well. A well-defined digital asset framework incentivizes regulators to adopt similar definitions in private law, promoting legal certainty and reducing regulatory conflicts.

From a design perspective, this approach allows the state to flexibly include or exclude assets from the scope of digital assets based on specific policy goals. This design choice contradicts the UNDROIT principles, which don’t grant states the authority to comprehensively exempt assets from relevant laws and limit states’ ability to impose unique control and transfer paradigms on digital assets. This limitation is understudied within the principles and the greater clarity on how municipal governments can modify the definition of digital assets would be helpful.

CONCLUSION

The article highlights the intricate landscape surrounding the definition and implementation of digital asset principles, as presented by UNIDROIT. It focuses on the unique challenges faced by countries that combine both private and public law principles, with India serving as a case study. The central issue revolves around the expansive definition of “digital assets” proposed by UNIDROIT, which has the potential to encompass a wide range of scenarios, creating complexities in its practical application.

These challenges can be broadly categorized into global and local issues. Global challenges, which transcend specific jurisdictions, require revisions to the UNIDROIT principles to address concerns on an international scale. Local jurisdiction challenges are more intricate and stem from conflicts between the UNIDROIT principles and existing local laws. The article underscores that the UNIDROIT principles do not adequately address the challenges faced by mixed legal systems like India, where both public and private law principles coexist. It emphasizes the necessity for a comprehensive study to determine how these principles can be effectively integrated into the domestic legal framework. Furthermore, the article highlights the conflicting definitions of digital assets within the Indian legal framework and the implications of this inconsistency.

The flexibility and exclusions allowed by the Indian Income Tax Act present a unique approach that contradicts the UNIDROIT principles, potentially creating legal uncertainties and regulatory conflicts. Clarity is required regarding the applicability of the principles in countries where both private and public law principles are in place. In essence, the article underscores the need for a harmonized and adaptable approach in the development and application of digital asset principles. It advocates for further engagement, in-depth study, and collaboration between international organizations, legal experts, and domestic regulators to address the complex challenges arising in this evolving legal landscape. Ultimately, achieving a balance between global harmonization and local specificity is crucial for the successful implementation of digital asset principles in diverse legal environments.

Author : Ananya Nandwana, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at IIPRD.

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[1] Sohini Banerjee, KS Roshan Menon, ‘Defining digital assets for private law: Perspectives from the global south’, (Shardul Amarchand Mangaldas, 10 October 2023, <https://www.amsshardul.com/insight/defining-digital-assets-for-private-law-perspectives-from-the-global-south/&gt;,accessed 26^th October 2023

[2] Ibid.

[3] ‘International harmonisation of digital asset law and regulation: a series of meaningful steps, but a long road ahead’,(Linklaters, 6 June 2023), <https://www.linklaters.com/en-us/insights/blogs/fintechlinks/2023/june/international-harmonisation-of-digital-asset-law-and-regulation&gt; accessed 27^th October 2023

[4] ‘Overview’ (UNIDROIT), <https://www.unidroit.org/wp-content/uploads/2023/04/C.D.-102-6-Principles-on-Digital-Assets-and-Private-Law.pdf&gt; accessed 27^th October 2023

Design, piracy and it’s remedies under the Designs Act, 2000

Introduction

According to [1]Section 2(qq) of the Copyrights Act, a “performer” is defined as someone who engages in various artistic activities, including the ones who perform dace, singing, acrobatics, conjuring activities, snake charming, delivering a lecture and others involved in making performances.

Under India’s Copyright Act of 1957, performance rights were established in 1994. However, such rights usually went unacknowledged worldwide until the “Convention of Rome” in 1961. It acknowledged the rights of performers and made it clear that without their permission, works created by them cannot be aired. S. 38, 39 and 39A cover the rights of such performers.

During the British rule, when copyright law was introduced, performer’s rights were not recognized. This was affirmed during the proceedings of  [2]”Fortune Films v. Dev Anand,” where the Bombay HC stated that performers did not have any copyright protection under the existing Copyright Act.

[Image Sources: Shutterstock]

As a result of this judgment, there arose a need to include performer’s rights in the copyright law. The Copyright regulations in India widened the scope of the performer’s creativity being protected in a way much broader that the Rome or TRIPS regulations.

The origin of Performers’ Rights

The Rome Convention, also known as the “International Convention for the Protection of Performers, Producers of Phonograms, and Broadcasting Organizations” was established during 1961. This was the very first document to give recognition to the rights of the artists. The administration in the Rome Convention is overseen collectively by the (ILO), (UNESCO), and the (WIPO).

In our country, the protection given for such rights are till 50 years. The Rome Convention’s Article 7[3] grants performers specific rights, including the right to prevent others from broadcasting or publicly communicating their acts without their permission or the reproduction of the same, imitation or the fixation of their live shows without getting a prior consent.

The TRIPS agreement further reinforces the provisions of the Convention signed in Rome. Art.14 recognizes the right to protect their works from broadcast and public communication by means that are wireless or the fixation of their events by means of phonograms or other forms of infringement.

The “WIPO Performances and Phonograms Treaty” (WPPT) was established in 1996, which recognized the moral and economic rights of performers in any international treaty for the first time. It emphasized that performers are in a well deserving position to get remunerated for their acts and creativity and if they give consent to others to use the same, they must receive the royalty.

The “Beijing Treaty on Audio-Visual Performance” was embraced by WIPO, in which the rights of all the artists were attempted to be protected from violation in the telecommunication or television sector by producers of films or digital content. This was another important improvement towards the rights enjoyed by the performers today.

Rights of individuals categorized as performers

• The performer possesses the right to create sound or visual recordings of their performance. The performers can also give the right to the others to use the recording of their acts in their projects. But this should be with proper consent and legal formalities being completed. The agreement must be with proper recognition for the talent of the owner of the creation and remuneration as well. if the consent is given, the producer is well within his rights to use the performance of an actor or singer or any other performer in his individual work.
• Additionally, [4]the performing individual can be producing the sound or the recording in the visual form as well. he can grant all the rights to other production houses to make copies of his production and rent out such copies or multiply them for commercial use. In the digital media, these rights are often violated. Therefore, there must be clear consent obtained for commercially using another person’s creation. 
• Furthermore, performers can stop others from utilizing their creativity by broadcasting their performances without their permission. Live telecasting some persons recording without their authorization is an offence. Such replications, even if done with consent should be with proper remuneration or payment of royalty to the original creator.
• Finally, apart from broadcasting, performers are in a position to make communication with their audience in any way they want and it is not merely restricted to digital or wireless methods.

Judicial Precedents in this matter

“Fortune Films International v. Dev Anand” had been one of the earliest issues that raised questions about performer’s rights in cinematographic films, and the court completely denied recognizing these rights. The court ruled that actors had no authority to have any control over their performances once they had received the payment for their services which they consensually gave in the project. it was held that if the producer can prove that the received the rights from the original performer in a due legal manner, there can be no case of infringement arising thereafter. However, the amendments in 1994, gave some recognition to the rights held by the artists later.

In “Super Cassettes Industries v. Bathla Cassette Industries” the Delhi HC made a distinction between copyright and performer’s rights. It established that if there is a repeated recording of a song, original singer’s permission must be obtained.

Another case, “Neha Bhasin v. Anand Raj Anand” addressed the meaning of a live act. The court held that in both cases of being recorded before a camera or an audience, the act will be considered live. Unauthorized use of such performances without the performer’s consent would be considered an infringement of the performer’s rights.

Legal protections that are available in case of infringement

Remedies are there to protect the artists from the infringement of their content and are provided in S. 55 and 63 to 70 of the Act. They include:

Civil Remedies: there are provisions which allow the complainant to file a suit that is civil in nature for getting a permanent or temporary injunction for the protection of their rights. There have been numerous cases of infringement in the patents of individuals. The Civil Procedure gives sufficient jurisdiction to the District Courts to try such matters.

Criminal Remedies: in case the guilt is proven and the infringement is of criminal nature, the convicted person can be asked to pay a fine of 50 thousand rupees or 2 lakh rupees or can also be sentenced to a jail term spanning up to 3 years. Even both can befall upon the accused in certain cases.

Anton Pillar Order: In certain events, the court can pronounce an Anton Pillar Order, thus allowing the complainant to enter in the premise of the defendant with his legal counsel in order to inspect the documents which are suspected to have caused the infringement alleged.  Removing crucial documents before an inspection or search warrant is executed by the court.

Conclusion:

Therefore, it can be concluded that although there is much scope for progress in the area of copyrights, the laws regarding the protection of the rights of the artists is in its place and suffices its purpose in the present scenario. To protect piracy of content and the infringement of the creative properties of the performers is the motive of the current legislations in which they are well-succeeding. With a rise in the acts of artistic performances and new areas of entertainment and content creation, there is bound to be an upsurge in cases of plagiarism as well. Thus, it can be said that the prospects of copyright laws look much wider in near future with rising complexities and need for amendments.

Author : Amber Raaj, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at IIPRD.

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[1] The Copyright Act 1957

[2] Fortune Films International v Dev Anand and Another on 14th March, 1978

Equivalent citations: AIR 1979 Bom 17, (1978) 80 BOMLR 263

[3] Article 7 ROME CONVENTION, 1961 INTERNATIONAL CONVENTION FOR THE PROTECTION OF PERFORMERS, PRODUCERS OF PHONOGRAMS AND BROADCASTING ORGANISATIONS

[4] “Performer’s Rights

By Richard Arnorld

Published by: Sweet and Maxwel”