Sunday, 29 November 2015

Fair Dealing under Copyright Law: Indian Perspective

Fair dealing is a limitation and exception to the exclusive right granted by copyright law to the author
of a creative work. Fair dealing is found in many of the common law jurisdictions of the Commonwealth of Nations. The doctrine of fair use or fair dealing is an integral part of copyright law. It permits reproduction of the copyrighted work or use in a manner, which but for the exception carved out would have amounted to infringement of copyright. It has, thus, kept out the mischief of the copyright law.

The defence of fair dealing originated as an equitable doctrine allowing certain uses of literary works that copyright would otherwise have prohibited, if prohibiting such uses would stifle the very creativity which that law is designated to foster. Fair dealing also serves as an answer to those “fair” copyright proponents who actively argue that copyright, not being a patent, is not an absolute right and should therefore be balance against user rights. Indeed the fair dealing doctrine is “a key part of the social bargain at the heart of the copyright law, in which as a society we concede certain limited individual property rights to ensure the benefits of creativity to a living culture”.

India’s fair dealing doctrine, along with that of other former UK colonies, has been perceived as having the weak imperial import. Fair dealing, as found in the United Kingdom’s copyright framework has been widely characterized as restrictive, featuring an exhaustive list of defined exceptions. In contrast to Indian and UK provision, which are traditionally applied only to a work used one of the closed list of enumerated purposes, fair use in the US allows any use of a work to be fair pursuant to a set of factors that aid in the decision making process. Apart from this, the US copyright code offers an open list of permissible purposes. The US fair use defense is said to offer flexibility at the expense of certainty, fair dealing, on the other hand, is said to offer certainty but is very rigid.

Members of WTO are obliged to conform with the essential factors of exceptions to copyright as provided by the Berne Convention and Article 13 of the TRIPS agreement which lay down a 3 step test, i.e.; exception must be ‘special’; it must not conflict with normal exploitation and it must not be unreasonably prejudice the legitimate interests of rights holders. It is to be noted that even the TRIPS equations of fair dealing has been considered to be closely aligned with the US doctrine of fair use. Therefore, the US doctrine fair use provision has been construed as the ‘fairest’ of all.

Legislative context of fair dealing in India
In India, the doctrine of fair dealing is statutorily entrenched under Section 52 of the Indian Copyright Act, 1957. The English Copyright Act, 1842 was held to be applicable in India by the Bombay High Court in McMillan V. Khan Bahadur (ILR (1895) 19 Bom.557), even when the Act was not made expressly applicable to India. In 1914, the Indian Legislature passed the Copyright Act 1914, which was essentially the extension of the British Copyright Act, 1911. The Indian Legislature; however had a very limited power of modification and addition.


Fair dealing was first statutorily introduced in 1914 as a more duplication of section 2(1)(i) of the UK Copyright Act, 1911, providing that copyright would not be infringed by ‘any fair dealing with any work for the purposes of private study, research, criticism, review or news paper summary”. The current Indian Copyright Act increased the scope of fair dealing and section 52 of the same Act has been amended thrice.

Saturday, 28 November 2015

Important doctrines of the Constitution

Doctrine of Pith and Substance
Pith means "true nature" or "essence" and substance means the essential nature underlying a phenomenon. Thus, the doctrine of pith and substance relates to finding out the true nature of a statute. The basic idea behind this principle is that an act or a provision created by the State is valid if the true nature of the act or the provision is about a subject that falls in the State list. This doctrine is widely used when deciding whether a state is within its rights to create a statute that involves a subject mentioned in Union List of the Constitution.

Doctrine of Colourable Legislation
The doctrine of Colourable legislation is based on the principle that what cannot be done directly cannot be done indirectly. In other words, if the constitution does not permit certain provision of a legislation, any provision that has the same effect but in a roundabout manner is also unconstitutional. A thing is colourable when it seems to be one thing in the appearance but another thing underneath. 

Doctrine of Eclipse
The Doctrine of Eclipse provides for the validation of Pre-Constitution Laws that violate fundamental rights upon the premise that such laws are not null and void ab initio but become unenforceable only to the extent of such inconsistency with the fundamental rights. If any subsequent amendment to the Constitution removes the inconsistency or the conflict of the existing law with the fundamental rights, then the Eclipse vanishes and that particular law again becomes active again.

Doctrine of Stare Decisis
Latin term ‘stare decisis’ means "to stand by that which is decided". Stare decisis is a doctrine or policy of following rules or principles laid down in previous judicial decisions. It is the principal that maintains that previous decisions are to be followed by the courts. This policy dictates that the court must abide or adhere to decided cases. When a point has been settled by a decision in court, this forms a precedent that must not be departed from.

Principle of Incidental or Ancillary Powers
The Principle of Incidental or Ancillary Powers means that the power to legislate on a subject also includes power to legislate on ancillary matters that are reasonably connected to that subject. It is not always sufficient to determine the constitutionality of an act by just looking at the pith and substance of the act. In such cases, it has to be seen whether the matter referred in the act is essential to give effect to the main subject of the act. The underlying idea behind this principle is that the grant of power includes everything necessary to exercise that power.

Principle of Harmonious Construction

The principle of harmonious interpretation is similar to the idea of broad or purposive approach. The key to this method of constitutional interpretation is that provisions of the Constitution should be harmoniously interpreted. .” A provision of the constitution must be construed and considered as part of the Constitution and it should be given a meaning and an application which does not lead to conflict with other Articles and which confirms with the Constitution’s general scheme. When there are two provisions in a statute, which are in apparent conflict with each other, they should be interpreted such that effect can be given to both and that construction which renders either of them inoperative and useless should not be adopted except in the last resort. 

Thursday, 26 November 2015

Remedies against Infringement of Copyright

There are three remedies against infringement of copyright are:
a) Civil
b) Criminal, and
c) Administrative
It is only the first two remedies, namely civil and criminal, which are of any real practical importance.

CIVIL REMEDIES:
The most importance civil remedy is the grant of interlocutory injunction since most actions start with an application for some interlocutory relief and in most cases the matter never goes beyond the interlocutory stage. The other civil remedies include damages – actual and conversion; rendition of accounts of profits and delivery up.

1) INTERLOCUTORY INJUCTIONS: The principles on which interlocutory injunctions should be granted were discussed in detail in the English case of American Cyanamid v Ethicon Ltd. (1975). After this case, it was believed that the classic requirements for the grant of interim injunction, namely,
a) Prima facie case
b) Balance of Convenience; and
c) Irreparable injury

2) PECUNIARY REMEDIES: Under Indian law, however, there is a departure made and the plaintiff, under sections 55 and 58, can seek recovery of all three remedies, namely (a) account of profits (b) compensatory damages and (c) conversion damages which are assessed on the basis of value of the article converted.

3) ANTON PILLER ORDERS: The Anton Pillar Order derives its name from a Court of Appeal decision in Anton Pillar AG V. Manufacturing Processes [1976]. An Anton Piller Order has the following elements:
a) An injunction restraining the defendant from dealing in the infringing goods or destroying, them;
b) An order that the plaintiffs solicitors be permitted to enter the premises of the defendants, search the same and take goods in their safe custody; and
c) An order that defendant be directed to disclose the names and addresses of suppliers and customers and also to file an affidavit will a specified time giving this information.

4) MAREVA INJUNCTION:  Mareva Injunction is an order which temporarily freezes assets of a defendant thus preventing the defendant from frustrating the judgement by disposal of such assets.

5) NORWICH PHARMACAL ORDERS: These are orders by which information can be discovered from third parties.

CRIMINAL REMEDIES:

Criminal remedies for copyright violation include:
I. Punishment through imprisonment which, under Indian law, may extend from a minimum period of six months to a maximum of three years;
II. Fines which, under Indian law, shall not be less than Rs.50.000. and which may extend to Rs.200, 000.

ADMINISTRATIVE REMEDIES:

Administrative remedies consist of moving the Registrar of Copyrights to ban the import of infringing copies into India when the infringement is by way of such importation and the delivery of the confiscated infringing copies to the owner of the copyright and seeking the delivery.

Wednesday, 25 November 2015

Precept under Code of Civil Procedure

Precept in simple terms means a command, instruction, or order intended as an authoritative rule of

action.
In legal terms, Precept means ‘a legal direction by one court to another court.”
The Precept Order is normally issued by one court, while executing a decree, to another court of other area to attach the property of the judgment debtor situate in that area.
In other words, if a property to be attached is situate in the area of another court’s territorial jurisdiction, then the court which passed the decree can issue a precept order to that court to attach that property of the judgment debtor.

Every court has its jurisdiction within the limits of its territorial area and not beyond that. Therefore the court which passed the decree shall have power to issue such Precept order to another court to attach the property of the judgment debtor property which situate within its territorial jurisdiction.
The provision of precept has been provided u/s. 46 of the Code of Civil Procedure, 1908. Section 46 of the Code of Civil Procedure, 1908 reads as:

“(1) Upon the application of the decree-holder the Court which passed the decree may, whenever it thinks fit, issue a precept to any other Court which would be competent to execute such decree to attach any property belonging to the judgment-debtor and specified in the precept.
(2) The Court to which a precept is sent shall proceed to attach the property in the manner prescribed in regard to the attachment of property in execution of a decree:

Provided that no attachment under a precept shall continue for more than two months unless the period of attachment is extended by an order of the Court which passed the decree or unless before the determination of such attachment the decree has been transferred to the Court by which the attachment has been made and the decree-holder has applied for an order for the sale of such property.”


A precept is not an Execution petition. It is only intended to enable the Decree holder to obtain an interim attachment when it is apprehended that he would be deprived of the fruits of the decree. It is a request, by the court, which passed the decree to another court by which attachment has been made. The attachment in pursuance of a precept is limited to two months unless it is extended further. The Decree holder necessarily files an execution petition in the court, which has attached the property for sale of the property. Every application for issue of a precept shall be in the form of an interlocutory application by assigning proper reasons.

Tuesday, 24 November 2015

Competition Commission of India

Competition Commission of India is a body of the Government of India responsible for enforcing
The Competition Act, 2002 throughout India and to prevent activities that have an adverse effect on competition in India. It was established on 14 October 2003.

The preamble of Competition Act, 2002 is as “An Act to provide, keeping in view of the economic development of the country, for the establishment of a Commission to prevent practices having adverse effect on competition, to promote and sustain competition in markets, to protect the interests of consumers and to ensure freedom of trade carried on by other participants in markets, in India, and for matters connected therewith or incidental thereto.”

The Competition Act, 2002, as amended by the Competition (Amendment) Act, 2007, follows the philosophy of modern competition laws. The Act prohibits anti-competitive agreements, abuse of dominant position by enterprises and regulates combinations (acquisition, acquiring of control and Merger and acquisition), which causes or likely to cause an appreciable adverse effect on competition within India.

It is the duty of the Commission to eliminate practices having adverse effect on competition, promote and sustain competition, protect the interests of consumers and ensure freedom of trade in the markets of India. The Commission is also required to give opinion on competition issues on a reference received from a statutory authority established under any law and to undertake competition advocacy, create public awareness and impart training on competition issues.

The objectives of the Act are sought to be achieved through the Competition Commission of India (CCI), which has been established by the Central Government with effect from 14th October 2003. CCI consists of a Chairperson and 6 Members appointed by the Central Government.
The present Chairperson of Competition Commission of India is Ashok Chawla. The other six members are S. L. Bunker,  Sudhir Mital, Augustine Peter, U. C. Nahta, M. S. Sahoo and G.P. Mittal           
To achieve its objectives, the Competition Commission of India endeavours to do the following:

1.       Make the markets work for the benefit and welfare of consumers.
2.       Ensure fair and healthy competition in economic activities in the country for faster and inclusive growth and development of economy.
3.       Implement competition policies with an aim to effectuate the most efficient utilization of economic resources.

4.       Develop and nurture effective relations and interactions with sectoral regulators to ensure smooth alignment of sectoral regulatory laws in tandem with the competition law.

5.       Effectively carry out competition advocacy and spread the information on benefits of competition among all stakeholders to establish and nurture competition culture in Indian economy.

Monday, 23 November 2015

Mensrea under Indian Law

Mensrea and Actus Reus are two components for constituting a crime. A person cannot usually be
found guilty of a criminal offence unless two elements are present, i.e. actus reus and mens rea. Mensrea means ‘guilty mind’ whereas actus reus means ‘guilty act’.
The latin phrase, actus reus non facit reum nisi mens sit rea, means an act does not make a person guilty unless mind is also guilty.

Actus Reus is the physical element of a crime. It can be in the form of an act, an omission or a state of affairs. It's the actual conduct which caused the crime. (Such as for a battery; the actus reus is the unlawful application of force (touching).
Mens Rea is the mental element of a crime. It's what goes on inside the defendants mind. It can be in the form of direct intention, indirect (oblique) intention or recklessness. (Eg. the mens rea of a battery is is intention or recklessness).

Mens Rea in Indian Law
Technically the Doctrine of Mens Rea is not applied to the offences under the Indian Penal Code. Here it is wholly out of place. In the Indian Penal Code, 1860, every offence is defined very clearly. The definition not only states what accused might have done, that also states about the state of his mind, with regard to the act when he was doing it.
Each definition of the offence is complete in itself. The words “mens rea” are not used any where in the Indian Penal Code. However the framers of the Code used the equivalent words to those of mens rea in the Code very frequently.

Such expressions are – Fraudulently (Section 25); Dishonestly (Section 24); Reason to believe (Section 26); Voluntarily (Section 39); Intentionally; etc.
Moreover in the Indian Penal Code, a separate Chapter (Chapter-IV) on General Exceptions is provided. Chapter-IV (Ss. 76 to 106) explains the circumstances, where options of criminal intent may be presumed. Comparing with English Law, Mens Rea has been applied by the Indian Courts, and it is now firmly settled law that Mens Rea is an essential ingredient of offence.

Cases on Mens Rea
State of Maharashtra v Mayor Hans George, AIR 1965 SC 722: Mens rea by necessary implication can be excluded from a statute only where it is absolutely clear that the implementation of the object of a statute would otherwise be defeated and its exclusion enables those put under strict liability by their act or omission to assist the promotion of the law.

Kartar Singh v State of Punjab, 1994 (3) SCC 569: The element of mens rea must be read into a statutory penal provision unless a statute either expressly or by necessary implication rules it out.

R v. Prince, L.R. 2 C.C.R. 154 (1875): Henry Prince was accused of abducting a 14-year-old girl, Annie Phillips, having believed her to be 18 years old. Such an act was at that time in violation of Article 55. Prince argued that he had made a reasonable mistake in regards to Phillips' age. Despite his excuse for the crime, he was ultimately convicted. It was held that the mens rea necessary for criminal liability should be required for the elements central to the wrongfulness of the act, and that strict liability should apply to the other elements of the statute.


Sherras v. De Rutzen, (I.Q.B. 918): It has been laid down that mens rea is an essential ingredient in every offence ex­cept in three cases: (1) Cases not criminal in any real sense but which in the public interests are prohibited under a penalty; (2) public nuisances; and (3) cases criminal in form but which are really only a summary mode of enforcing a civil right.

Sunday, 22 November 2015

Armed Forces (Special Powers) Acts


Armed Forces (Special Powers) Acts (AFSPA), was enacted in 1958 to bring under control what the
government of India considered ‘disturbed’ areas.
AFSPA was passed on 11 September 1958 and applied to the Seven Sister States in India's northeast. Another Act was passed in 1983 and applied to Punjab and Chandigarh and was withdrawn in 1997, roughly 14 years after it came to force & from Tripura in 2015. Another such act was passed in 1990 and applied to Jammu and Kashmir.

Presently, AFSPA is enforced in Assam, Nagaland, Manipur (except the Imphal municipal area), Arunachal Pradesh (only the Tirap, Changlang and Longding districts plus a 20-km belt bordering Assam), Meghalaya (confined to a 20-km belt bordering Assam) and Jammu and Kashmir.

Powers to declare areas to be disturbed areas – As per section 3 of the AFSPA 1958 if the Governor of the State or the administrator of the Union Territory or the Central Government, in either case, if of the opinion that the whole or any part of such State or Union territory, as the case may be, is in such a disturbed or dangerous condition that the use of armed forces in aid of the civil power is necessary, the Governor of that State or the Administrator of that Union Territory or the Central Government, as the case may be, may by notification in the Official Gazette, declare the whole or such part of such State or Union territory to be a disturbed area.
Special Powers of the Armed Forces – As per section 4 of the AFSPA 1958, any commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the armed forces may, in a disturbed area,-

(a) if he is of opinion that it is necessary so to do for the maintenance of public order, after giving such due warning as he may consider necessary, fire upon or otherwise use force, even to the causing of death, against any person who is acting in contravention of any law or order for the time being in force in the disturbed area prohibiting the assembly of five or more persons or the carrying of weapons or of things capable of being used as weapons or of fire-arms, ammunition or explosive substances;

(b) if he is of opinion that it is necessary so to do, destroy any arms dump, prepared or fortified position or shelter from which armed attacks are made or are likely to be made or are attempted to be made, or any structure used as a training camp for armed volunteers or utilized as a hide-out by armed gangs or absconders wanted for any offence;

(c) arrest, without warrant, any person who has committed a cognizable offence or against whom a reasonable suspicion exists that he has committed or is about to commit a cognizable offence and may use such force as may be necessary to effect the arrest;

(d) enter and search without warrant any premises to make any such arrest as aforesaid or to recover any person believed to be wrongfully restrained or confined or any property reasonably suspected to be stolen property or any arms, ammunition or explosive substances believed to be unlawfully kept in such premises, and may for that purpose use such force as may be necessary.

                                         

                                          According to the Armed Forces Special Powers Act (AFSPA), in an area that is proclaimed as "disturbed", an officer of the armed forces has powers to:

         i.            After giving such due warning, fire upon or use other kinds of force even if it causes death, against the person who is acting against law or order in the disturbed area for the maintenance of public order,

       ii.             Destroy any arms dump, hide-outs, prepared or fortified position or shelter or training camp from which armed attacks are made by the armed volunteers or armed gangs or absconders wanted for any offence.

      iii.              To arrest without a warrant anyone who has committed cognizable offences or is reasonably suspected of having done so and may use force if needed for the arrest.

     iv.               To enter and search any premise in order to make such arrests, or to recover any person wrongfully restrained or any arms, ammunition or explosive substances and seize it.

       v.                Stop and search any vehicle or vessel reasonably suspected to be carrying such person or weapons.

     vi.               Any person arrested and taken into custody under this Act shall be made present over to the officer in charge of the nearest police station with least possible delay, together with a report of the circumstances occasioning the arrest.

    vii.               Army officers have legal immunity for their actions. There can be no prosecution, suit or any other legal proceeding against anyone acting under that law. Nor is the government's judgment on why an area is found to be disturbed subject to judicial review.

  viii.               Protection of persons acting in good faith under this Act from prosecution, suit or other legal proceedings, except with the sanction of the Central Government, in exercise of the powers conferred by this Act.

Saturday, 21 November 2015

Universal Copyright Convention


The Universal Copyright Convention (UCC), adopted in Geneva, Switzerland, in 1952, is one of the two
principal international conventions protecting copyright; the other is the Berne Convention.
The Universal Copyright Convention was developed by United Nations Educational, Scientific and Cultural Organization (UNESCO) as an alternative to the Berne Convention for those states which disagreed with aspects of the Berne Convention, but still wished to participate in some form of multilateral copyright protection. 

These states included developing countries as well as the United States and most of Latin America. The former thought that the strong copyright protections granted by the Berne Convention overly benefited Western, developed, copyright-exporting nations, whereas the latter two were already members of the Buenos Aires Convention, a Pan-American copyright convention that was weaker than the Berne Convention. The Berne Convention states also became party to the Universal Copyright Convention, so that their copyrights would exist in non-Berne convention states. In 1973, the Soviet Union joined the Universal Copyright Convention.

To approach the aim of universal membership and thus to include countries with a need for low protections , such as developing countries ( more than in the pre-existing conventions ) , the USA and the Soviet Union , the contents of the 1952 Universal Copyright Convention had to follow a relatively minimalist approach.
The Preamble , unlike that of the Berne Convention , did not introduce the aim of protecting the rights of the authors ‘in as effective and uniform a manner as possible ‘ , but only intended to ‘assure in all countries copyright protection’ . The principle of minimum rights was hardly realized in the 1952 text; there was only very limited translation right in addition to the very general obligation to ‘provide for the adequate and effective protection of the rights …’

Instead of Berne’s principle of ‘no formalities ‘ , Article 3(1) of the UCC permitted formalities for foreign works , but only those specified in this provision . This compromise allowed countries such as the USA to continue their requirements for domestic works, while enabling works from other UCC countries to enjoy protection in the USA or other countries if they only fulfilled the limited requirements of the UCC.

Article 4 of the UCC provided for a general minimum duration of only twenty five years, and of ten years for photographic works and works of applied art. A transitional provision even allowed any Contracting State which, at the date of entry into force of the UCC in that state, provided for certain classes of works. The duration had to be computed after the first publication of the work. Reciprocity was introduced, given the diversity of national laws on the duration.
 
The principle of national treatment was drafted in a slightly different way from that under the Berne Convention. The UCC in the version of 1952 also contained a definition of ‘publication’ , a rule on application in time , final and administrative clauses and framework provisions - in particular the Berne safeguard clause.

This clause was to discourage Berne Union countries from leaving the Berne Convention .The countries that adhered only to the UCC, would not be protected under the Berne Convention. Moreover, if a Berne country which was country of origin of a work under the Berne Convention withdrew from the Berne Convention after 1 January 1951, the respective work would not be protected by the Universal Copyright Convention in the Berne countries. In addition, this provision stipulated that among Berne Union countries which were also Contracting States of the Universal Copyright Convention, the latter was not applicable in respect of works whose country of origin was a Berne country.