Categories
Blog

Role of Indian Coast Guard in Maritime Security

This blog post has been authored by Jay Maniyar

INTRODUCTION

As a maritime nation-state, maritime security is critical to India. With a large coastline of 7516 km, India has much to worry about as far as its maritime safety and security are concerned. Challenged by a panoply of traditional and non-traditional security threats to its survival, India employs the Indian Coast Guard (ICG) to guard its waters. Official statements describe the Indian Coast Guard as a “multi-mission, round-the-year” organization tasked with monitoring India’s massive coastline every day. The ICG is headed by a Director-General while its headquarters are based in New Delhi. Five Coast Guard regions have been devised for effective command and control.

As a coastal security force, the ICG is concerned with the overall maritime security of the country. The ICG governs India’s territorial waters and its contiguous and exclusive economic zones which extend up to a total of 200 nautical miles from the maritime baseline of the country. The ICG is a maritime law enforcement agency and is concerned with illicit activities such as human smuggling, drug trafficking, potential terrorism, and other forms of maritime crime at sea. The ICG has 15,714 personnel within its ranks, 175 vessels for duty, and 44 aircrafts. The ICG was established through the Coast Guard Act of 1978.[1] It was devised and set on course for duty on February 1, 1977. The Act officialised its operations and legalized the ICG as an armed force of the Union of India.

To learn more about maritime law and security, enrol for Diploma in Maritime Law and Security. 

ROLE OF INDIAN COAST GUARD

The ICG plays a pivotal role in India’s overall coastal security because it is an agency that is concerned with everything to do with the coastal waters. Moreover, its duties now extend to preserving India’s blue economy, which is an area which has emerged as an engine of growth for the country. The ICG is the foremost, first-rate force which provides coastal security to the country and is even involved in humanitarian assistance and disaster relief (HADR).

The ICG also assumes a key and central role in the overall maritime security of India because it is the second-most important agency of security after the Indian Navy (IN). The ICG, in particular, does not play second fiddle to IN and is actively involved in maritime-naval exercises, seabed security, security to the untapped energy reserves in the EEZ and other activities which have to take place across the EEZ. These further emphasize the importance of the Indian Coast Guard in India’s maritime security regimen.

Within the inventory of the ICG are several offshore patrol vessels (OPVs), pollution control vessels (which pertain to the health of the maritime ecosystem), fast patrol boats, hovercrafts, intelligence survey ships, and many others. The ICG has a strong inventory which can be expected to officiate duties that would otherwise pose hindrances and problems to India’s maritime security. The ICG is a stand-alone force and it is not merely a force which is to play second fiddle to the Indian Navy. It is to be a coastal and maritime security mechanism by itself through its well-arranged hierarchy.

The Indian Coast Guard undertakes duties ranging from the safety of islands, offshore terminals, installations, etc. to the protection of fishermen who are facing distress at sea.[2] As far as legal responsibilities are concerned, the ICG is responsible for enforcing the Maritime Zones of India Act 1981 which governs the fishing regulation by foreign vessels. The ICG also assists customs and other authorities in anti-smuggling operations.

As far as foreign Coast Guards are concerned, coast guard-to-coast guard cooperation takes place in the form of joint maritime-naval exercises, joint patrols called Coordinated Patrols (CORPATs), and cooperation and collaboration at the officers’ level (training, education, sharing of best practices, etc.).  Coast Guards cooperate much like navies do because maritime security has largely become an area dominated by common security concerns and the need for joint missions and better interoperability during crises.

The Indian Coast Guard is no different. The Indian and regional Coast Guards have agreed to cooperate by signing Memoranda of Understanding (MoUs). India cooperates chiefly with Coast Guards in its immediate proximity such as those of Thailand and Indonesia. Thus, it can be seen that the Indian Coast Guard takes ample interest in the larger maritime security affairs of India and is keen on linking up with regional bodies that serve their nations in a similar way to the ICG.

The technology used by the Indian Coast Guard includes a Coastal Radar Surveillance System, Automatic Identification System (AIS), and various cameras and sensors. These ensure technological adeptness and provide for better surveillance and improve upon the manual abilities of Coast Guard personnel. As can be understood from the above, the ICG is a high-tech force and continues to upscale its technologies to achieve maritime-naval dexterity and fight maritime crime and other such problems at sea.

To learn more about maritime law and security, enrol for Diploma in Maritime Law and Security. 

INDIAN COAST GUARD AND MARITIME SECURITY- AN ANALYSIS

Maritime security is a continual process which requires that there should be round-the-year observance, surveillance, and response mechanisms in place. The Indian Coast Guard is a state-of-the-art coastal security force that is responsible for the coastal security of the country. The Indian Coast Guard battles traditional and non-traditional threats in an insecure environment around the Indian maritime zones. The Mumbai 26/11 attacks which shocked the nation were initiated through the maritime routes from Pakistan to India. Such destruction has catalyzed an improved Coast Guard and the accompanying security apparatuses.

At the time, India had accorded the responsibilities for coastal security to the State Marine Police. However, following the ghastly terror that was unleashed in Mumbai, the Indian Coast Guard was made responsible for the security of the Indian coastline of 7516 km. This was approved by the central government in February 2009. The Coast Guard has also been made responsible, in the wake of the Mumbai attacks, to ensure synergy and coordination between coastal and state maritime security agencies. This further entrusts it with a major role in the holistic maritime security of India. Today, the Indian Coast Guard provides much much more than ordinary coastal security and is integral to the entire maritime security of India.

The many forms of surveillance provided by the Indian Coast Guard[3] are the following:

1) On the Beat: This covers the ICG’s mere presence at sea. The ICG will also be expected to provide first response to maritime crime or natural disasters. The presence of the ICG is akin to a maritime policeman.

2) Exclusive Economic Zone (EEZ) Surveillance: The ICG is expected to provide surveillance to the 2 million square kilometres (sq. km.) of India’s EEZ. This surveillance is expected to preserve resources, sustain the maritime environment, and secure communication between ships and oil platforms (for example).

3) Aerial Surveillance: Shore-based aircrafts and helicopters in the Indian Coast Guard are supposed to provide for rescue operations and options to assist the Indian Navy’s maritime-naval arm, too. High technologies are also provided to the aircrafts and they are also expected to respond to oil spills or other ecological disasters.

4) Extended EEZ Surveillance: The ICG is also expected to assist its partners with surveillance of their EEZs owing to low coastal security capacities within their navies or the absence of Coast Guards in their entirety.

5) Coastal Security: Coastal security is the fundamental and foremost duty of the Indian Coast Guard. Contingency plans created by various maritime-naval agencies are conducted by the ICG as part of its coastal security operations.

6) Offshore Security: Offshore security is akin to coastal security but envisages a broader plan and perspective for the maritime domain. Anti-terrorism, anti-piracy, and port security are undertaken by the Coast Guard as part of its offshore security mechanisms.

7) Boarding Operations: The ICG is also entrusted with searching vessels and other merchant ships such as oil tankers for nefarious activities such as maritime crime, smuggling, trafficking, etc. ICG officers board suspect ships to inspect them and then initiate the necessary mechanisms to ensure that the maritime domain remains crime free.

As can be seen from the above, the ambit of operations of the Coast Guard is quite exhaustive and extensive. The Coast Guard is expected to conduct duties such as surveillance, initiate first responses to contingencies such as disasters and pirate attacks, combat maritime criminals and bring them to the jurisdiction of law, and be responsible for the overall coastal security of the country.

The Coast Guard can be further expected to expand its duties. They can provide coastal escort for merchant ships to de-burden navies while they can also be expected to take up some of the duties of the navies themselves. The Coast Guard is a foremost coastal security force and it will serve the force well to continue to broaden the ambit and scope of its duties. The Coast Guard is presently India’s second most important maritime security force in comparison to the Indian Navy.

To learn more about maritime law and security, enrol for Diploma in Maritime Law and Security. 

CONCLUSION

A continually improving Indian Coast Guard will secure India better

The Indian Coast Guard remains a strongly vigilant force that continues to upgrade its capabilities and capacities in an urgent manner. With upgraded technologies, a broader scope and vision, and expanded duties, the ICG is a force to reckon with and remains at the helm of the maritime security affairs of the nation. A strong and capable Coast Guard provides for a safe and secure coastline and, effectively, a safe and secure India. Only such a worthy coastal and maritime security body will secure India in the short, medium, and long terms.

For a country that is now an aspirant to atmanirbharta (self-reliance in defence production and procurement), India must have a strong and capable Coast Guard in place to ensure that it achieves the goal of SAGAR or Security And Growth for All in the Region. This coupled with uniquely Indian initiatives such as the Indo-Pacific Oceans’ Initiative (IPOI) or SAGARMALA (a chain of ports and coastal community-led development in India) will have to be secured by the Coast Guard and only then will they achieve their maritime security goals.

India’s maritime security has traditionally been weak since maritime security agencies have always been given no importance in the hierarchy. The Indian Army remains the most important instrument for securing the country. The Indian Navy is third even after the Indian Air Force. Thus, the Coast Guard suffers from a similar predicament and was only founded several decades after India’s independence. It is hoped that such negligence will become a relic of history and the ICG will be a prominent force for Indian national security.

To learn more about maritime law and security, enrol for Diploma in Maritime Law and Security. 

[1] Source: https://www.mod.gov.in/sites/default/files/Coast%20Guard%20Act%2C%201978.pdf

[2] Source: https://joinindiancoastguard.cdac.in/role.html

[3] Source: https://indiancoastguard.gov.in/content/1718_3_MaritimeSurveillance.aspx

Categories
Blog

Intellectual Property in Fashion Industry

This blog post has been written by Akanksha Sudhakar

1. INTRODUCTION

As long as there have been fashion houses-and almost as long as there have been people making clothes- there are countless occasions where there has been a need to consult lawyers. Some years ago, the words “fashion” and “law” were not linked, and fashion law wasn’t a specialised area of law practice. Today, a few short years later, there is a legal field made to measure for the business of fashion. Many law students [and even practicing lawyers] equate fashion law with intellectual property laws. One might reasonably consider intellectual property to be at the core of fashion law, since the value of fashion-as opposed to clothing-rests in large part on the fascination of a brand, and that fascination is protected primarily by intellectual property law.

The term intellectual property, conventionally understood, includes, on a federal level, utility and design patents and copyrights; on a federal and state level, trademark and trade dress protection; and on a state level, trade secret protection, the right of publicity, the right against misappropriation, and other causes of action that vary by state.[1]

This article discusses in detail, the role played by intellectual property in fashion industry.

2. TRADE MARK PROTECTION

Intellectual property, especially in the form of trademark protection is often one of the most valuable assets owned by a fashion enterprise. Indeed, in today’s fashion world, many companies are little more than vendors of licenses to use well-known brand names in connection with particular categories of apparel and accessories.[2] Trade marks do not directly protect textiles or fashion garments but the way in which designers can use their trade marks in their designs can enable their creations to come under the remit of trade mark law. This central emphasis on trademark protection is arguably the result of the fashion’s function as an indicator of social status[3] and the lack of copyright protection for fashion design which largely shifts the emphasis from what is being sold to who is selling it. Whatever the explanation, trademark protection tends to eclipse other forms of intellectual property protection in the fashion world.

To learn more about Fashion Law, enrol for Diploma in Fashion Law.

3. COPYRIGHT PROTECTION

On the other hand, the laws of copyright is often described as “bundle of rights” that are granted to the creator of an original work of authorship that is fixed in tangible form.[4] The Supreme Court of the United States has explained that the word “original” has a special meaning in the context of copyright; a work may be “original”, even if it is not entirely novel, provided that it was “independently created by the authors opposed to copied from other works- and that it possesses at least some minimal degree of creativity”.[5] This is a low threshold, however, while evaluating protection for the copyright-eligible categories of fashion design, we might reasonable come to an inference that the otherwise lax originality requirement may have more “teeth” when it comes to clothing and jewellery.

A lot of such instances in the fashion law not only has determined whether a party has infringed on one’s copyright, but it must first assess the validity of the copyright and then evaluates whether ‘substantial similarity’ exists between the plaintiff’s work to that of the defendant’s. The validity of one’s copyright in a fashion article relies on a number of factors, including the “idea/expression dichotomy” and, particularly important for fashion design, the “separability” test. In determining whether substantial similarity exists between the plaintiff’s and the defendant’s works that could potentially give rise to a copyright infringement, federal courts typically ask whether

  1. a non-trivial amount of the original work was used[6], and if the amount used was more than de minimis
  2. whether the ordinary observer [unless is set out to detect the disparities] would be disposed to overlook them, and regard their aesthetic appeal as the same.[7]

Even where drawings or photographs of garments are protected by copyright, the garments themselves have long been considered ‘useful articles. Since, majority of the copyright legislations around the world excludes ‘useful articles’ from federally copyrightable subject matter, clothing generally receives no protection under the copyright law. Newcomers and many long-established designers are also surprised by this situation and many have argued that ‘useful article’ bar to protection makes little sense in an age where much of fashion is more ornamental than functional.[8] However, garments along with other types of fashion accessories, are eligible for copyright protection to the extent that their design “incorporates pictorial, graphic, or sculpture features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article”.[9]

The common case of infringement that takes place in the fashion industry is that of the large high-street chain copying a smaller fashion designer. The way that Issa is copied is indicative of this. Issa deals with copycats and takes action, but many designers do not have access to advice, nor funds to deal with copycats in the same way. It is true that to an extent the designers accept that being copied is recognition for success; however, this does not mean that they are flattered by it, nor does it stop them from taking action where action is available. Today, copying is easier than ever, with the ease of access of information and liberalised trade in textiles and clothing, the often-cheaper copies being imported from a low-wage developing country especially now that the trade has been liberalised.

The rampant copying has caused high fashion designers to accept that being copied is part of the process and there is too much copying and different degrees of it to stop it all. Thus the only way to deal with this as designers is to keep innovating. As Miuccia Prada puts it, “The highstreet, actually is a kind of good. The only thing is that you’re always forced to do something new, something more. You are never allowed to enjoy anything because it’s always everywhere and then it’s over, over, over in a very short time.”[10]

In this context, copyright does not play that much of a role, as it only bites when copying has taken place and the rightful owner chooses to take action. This does not support the Piracy Paradox but highlights the reality of the industry and how IP protection is not just about action taken afterwards but equally about protection before as well as innovation and creativity. Taking action is not always seen as an option for designers not only for cost and time expenses but also for lack of information and availability of IP services.

4. TRADE SECRET PROTECTION

On the other hand, protecting valuable information as a trade secret always comes into play when one discloses information on a new project, novel technologies or solutions in the context of potential research or business collaborations. One might share sensitive information, expertise, and specific plans on how a project should be carried out during meetings with possible business, research, or financial partners. To safeguard all confidential information shared during the meeting, one needs to make sure that they have their partners sign a non-disclosure agreement (NDA), either one-way or mutual. This gives a legal foundation on which one can defend their rights if one of the prospective partners violates its confidentiality.

But one thing that needs to be taken in account is that trade secret protection is only useful for inventions that rivals won’t be able to deduce from looking at your product and company’s public elements which is another difficulty that is face while protecting their inventions. This is because one the information comes in the public knowledge, the trade secret protection automatically ceases to exist.

To learn more about Fashion Law, enrol for Diploma in Fashion Law.

5. PATENT PROTECTION

The inventive component of a design in the fashion business can also be protected under the patent law. But, in order to do so, there are two considerations that must be taken in order for a design to be patented. They are novelty and originality. A design needs to be novel and Original. It should have been made for the first time because of its nature. The design must also be feasible from a scientific standpoint. However, the fashion business does not use patent law very frequently. The technical sector has a greater prevalence of them. A patent registration is an expensive and time-consuming process. The fashion industry has little value in this sector because it is so dynamic.[11]

6. LANDMARK CASE LAWS

Louis Vuitton Malletier, S.A. v. My Other Bag, Inc.,[12]

This case of copyright violation is very well-known. In this instance, the company ‘My Other Bag’ created a parody tote bag with a print of a Louis Vuitton image. My other bag was the target of a lawsuit by Louis Vuitton for its design and copyright theft. In this case, the hon’ble court ruled that the parody accounts could convey two concurrent, and contradictory meanings. Louis Vuitton, the petitioner, complained that the defendant had attempted to imitate their copyrighted design. The petitioner added that it is attempting to defend its IP rights in its defence. The court rejected the accusations since the defendant’s offering was a parody.

Puma SE v. Forever 21, Inc.[13]

Infringement of copyright and design were issues in this case. Puma filed a lawsuit against forever 21 for allegedly copying the limited-edition shoes that the well-known singer Rihanna created for the company known as puma. The singer Rihanna personally developed the Creeper Sneaker, Fur Slide, and Bow Slide for the Fenty line. The court in this case decided that a product does not automatically fall under the umbrella of copyright production merely because a particular celebrity is associated with it or has supported it. Copyright is issued based on the originality and novelty of a particular design as well as the design’s individuality. The lawsuit and this case made no mention of Rihanna.

To learn more about Fashion Law, enrol for Diploma in Fashion Law.

7. MEASURES TO EFFECTIVELY PROTECT THE BRAND ONLINE

First of all, the consumers need to be informed and made aware that the sale of fake goods not only damages the brand but can also directly harm them, such as when it comes to the quality and safety of the products they buy or the absence of warranties. In addition to the negative effects fake fashion has on the economy and the environment (mass production, low-quality chemicals used, annual disposal of tonnes of clothing), this uncontrolled sector frequently uses sweatshops, with all the negative effects and ramifications these have on people. Additionally, it is well known that many counterfeit businesses are linked to organised crime, and fake currency has also emerged as a go-to source of funding for terrorist organisations.

Competing with counterfeiters may be difficult, discouraging, and dangerous for a brand. However, the majority of internet players are developing tools to help brand owners efficiently combat counterfeits online. For instance, Amazon recently debuted “Project Zero.” Automated protections will continuously monitor the website and proactively delete suspected counterfeits after receiving from the brand the logo, trademark, and other essential information from Amazon. Additionally, without having to first get in touch with Amazon, this solution enables marketers to easily regulate and remove listings from the Amazon shop.

8. CONCLUSION

Technology can therefore, be your best ally when it comes to safeguarding a fashion brand’s intellectual property online. Artificial intelligence (AI), like Project Zero and other such programmes, has demonstrated effectiveness in the fight against counterfeits, cutting down on the time that businesses must devote to a manual search for prospective infringers. One can now rely on software and AI to attempt to remove counterfeiters effectively because there are so many platforms and counterfeiters. But keep in mind that any IPR asset must be successfully protected through the use of conventional methods like customs or legal procedures in the battle against counterfeits. This is because IP and fashion are interconnected. They both co-exist, and neither can survive without the other. IP law is required to increase any fashion design’s monopoly and serves as a shield against the ills of duplication and plagiarism.

To learn more about Fashion Law, enrol for Diploma in Fashion Law.

[1] Charles E. Coleman, ‘An Overview of Intellectual Property Issues Relevant to Fashion Industry’ (Navigating Fashion Law), Aspatore (2012).

[2] Vicki M. Young, ‘JA Apparel Said to Favor Licensing Model’ (Women’s Wear Daily, 21 July 2011), < https://wwd.com/business-news/financial/ja-apparel-said-to-favor-licensing-model-3728944/>  accessed on 30 August 2022.

[3] Barton Beebe, ‘Intellectual Property and the Sumptuary Code’ 123 Harvard Law Review (2010) at p. 809.

[4] Feist Pubs v. Rural Telephone Service Co., 499 US 340, 355 (1991).

[5] Ibid.

[6] Ringgold v. Black Entertainment TV, 126 F.3d 70 (2nd Circuit).

[7] Peter Pan Fabrics Inc. v. Martin Weiner Corp., 274 F.2d 487 (2nd Circuit).

[8] Amy M. Spindler, ‘COMPANY NEWS; A Ruling by French Court Finds Copyright in a Design’ (The New York Times, 19 May 1994), < https://www.nytimes.com/1994/05/19/business/company-news-a-ruling-by-french-court-finds-copyright-in-a-design.html> accessed on 30 August 2022.

[9] Section 101, US Copyright Act.

[10] D Llewelyn, Invisible Gold in Asia: Creating Wealth Through Intellectual Property (Marshall Cavendish Business 2010) at p. 36.

[11] Beebe, B. (2010). INTELLECTUAL PROPERTY LAW AND THE SUMPTUARY CODE. Harvard Law Review, 123(4), 810–889.

[12] 18-293-cv (2d Cir. Mar. 15, 2019).

[13] No. CV17-2523 PSG Ex, 2017 U.S. Dist. LEXIS 211140 (C.D. Cal. June 29, 2017).

 

Categories
Uncategorized

Role of Intellectual Property in Cyber Law

This blog post has been written by Dr. Apoorva Dixit

INTRODUCTION

The Intellectual Property Rights[1] protect the original work in fields of art, literature, photography, writing, paintings, even choreography in written format, and audio, or video files. The IPR protects these works both in tangible and intangible form. Patent, Copyright, Trademarks, Trade Secrets, Industrial and Layout Designs, Geographical Indications are intellectual property rights for which legal remedies are available even for online infringements.

With the technological advancements and innovations in cyber world the global markets have benefitted the copyright or patent owners. However, every good innovation has its own pitfalls as violation of IPR has become one of the major concerns because of the growth of cyber technology. The IPR and Cyber law go hand in hand and cannot be kept in different compartments and the online content needs to be protected.

The ever-increasing and evolving cybercrimes are not confined to cyberstalking, frauds, cyberbullying, phishing, or spamming but are also infringement of IPR- copyright, trademark, trade secrets of businesses carried online, audios, videos, service marks by illegal practices like hyperlinking, framing, meta-tagging, and many more.

What are Intellectual Property Rights in Cyberspace

IPR can be defined as – “Intellectual property rights are the legal rights that cover the privileges given to individuals who are the owners and inventors of a work and have created something with their intellectual creativity. Individuals related to areas such as literature, music, invention, can be granted such rights, which can then be used in the business practices by them.”[2]

Types of Intellectual Property Rights[3]

Intellectual Property Rights can be further classified into the following categories −

  • Copyright
  • Patent
  • Trade Secrets, to name a few[4]

Every innovation in technological zone becomes prone to threats. The cyberspace on one hand has facilitated e-commerce, connecting with friends and family, publishing the literary works, and sharing knowledge but at the same time these personal data or copyrighted or patented data become vulnerable to various cyber-attacks.

It is best suited to have an effective intellectual property management strategy for all the e-businesses encompassing a considerable number in cyberspace.

There are various laws nationally and internally to safeguard intellectual property against cyber-threats, but it becomes the moral duty of the owner of IPRs to take all the required protective measures to negate and reduce illegitimate virtual attacks.

Intellectual Property Rights in India

For the protection, the IPRs in Indian soil, various constitutional, administrative, and judicial rules have been defined whether it is copyright, patent, trademark, or other IPRs.

Legislations Enacted to Protect IPR[5]

In the year 1999, the government passed an important legislation based on international practices to safeguard the intellectual property rights. The same are described below−

  1. The Patents (Amendment) Act, 1999, facilitates the establishment of the mailbox system for filing patents. It offers exclusive marketing rights for a time of five years.
  2. The Trademarks Bill, 1999.
  3. The Copyright (Amendment) Act, 1999.
  4. Geographical Indications of Goods (Registration and Protection) Bill, 1999.
  5. The Industrial Designs Bill, 1999, replaced the Designs Act, 1911.
  6. The Patents (Second Amendment) Bill, 1999, for further amending the Patents Act of 1970 in compliance with the TRIPS.

Learn more about the IP regime in India with Enhelion’s Diploma in Intellectual Property: Law and Management.

CHALLENGES FACED IN PROTECTION OF IPR IN CYBER LAW

A. Copyright Infringement:[6]

“Copyright protection is given to the owner of any published artistic, literary, dramatic, or scientific work over his work to exclude everyone else from using that work on his own name and thereby gain profit from it.”

The infringement of these copyrights includes the usage without the permission of the owner, making and distributing copies of software and unauthorized sale of the same, and illegitimate copying from websites or blogs.

  • Linking:

Linking refers to directing a user of a website to another webpage by action of clicking on a text or image without leaving the current page. It poses a threat to rights and interests of the owner of the website and the owner can lose the income as it related to the number of users visiting the websites. It may lead users to believe that the two websites are linked and are under same domain and ownership.

In Shetland Times, Ltd. v. Jonathan Wills and Another[7], it was held to be an act of copyright infringement under British law and an injunction was issued as the Shetland News’s deep link was supposed to be with the embedded pages of the Shetland Times’s web site, but they were also linked to the Times’ website.

With digitisation there is a threat to copyright ownership and rights over their own innovation as it has become easy to mould various components of copyright elements into variety of forms by the process of linking, in-linking, and framing. This requires no permissions to be accorded.

Deep linking is challenging to manage as there are no clear-cut laws at both national and international level and this ambiguity becomes advantageous for cybercriminals who try to breach the copyrights. The rights of the owner of copyrights on one hand and free availability of information on another is needed to be balanced to ensure smooth working of online resources and businesses. Reading Sections 14 and 51, Indian Copyright Act, 1957, a legal issue emerges whereby it is not clear as to the exact stage when the reproduction of the copyrighted work is being committed[8]. The ambiguity lies in tracing the copyright infringement that is it at the stage of formation of deep link without the disclaimer of accessing a link which needs no approval or at the time when a user accesses the link at his will.

Another challenge is with the in-linking links. On a browser visited by a user accessing the link is created with map to navigate and fetch images from various sources, these images are copied by final user who is clueless that he is retrieving those from different websites. Like deep linking, the problem of tracing the infringement remains the same as it is difficult to track the exact phase of reproduction of the copyrighted images. The in-line link creator is guilty of copyright infringement though not directly distributing it but giving way to facilitate making of unauthorized copies of the original website content thereby falling under the purview of Section 14 Copyright Act, 1957. However, the final user has no mens rea or knowledge of any violation of copyright and is thus caught off-guard.

  • Framing:

Framing is another challenge and becomes a legal issue and debate subject over the interpretation of derivation and adaptation under Section 14 Copyrights Act, 1957. The framer only provides users the modus operandi to access copyrighted content which is retrieved from a website to browser the user is accessing so they cannot be held responsible for copying, communicating, or distributing the copyrighted content. The question arises whether getting the copyrighted content from a website and combining with some more to create one’s own will amount to adaptation or interpretation under law or not.

B. Software Piracy:

Software piracy refers to making unauthorized copies of computer software which are protected under the Copyright Act, 1957.

Piracy can be of following types:[9]

  • Soft lifting – this means that sharing a program with an unauthorized person without a licence agreement to use it.
  • Software Counterfeiting – Counterfeiting means producing fake copies of a software, imitating the original and is priced less than the original software. This involves providing the box, CDs, and manuals, all tailored to look as close to original as possible.
  • Renting – it involves someone renting a copy of software for temporary use, without the permission of the copyright holder which violates the license agreement of software.

C. Cybersquatting And Trademark Infringement:

Trademark means a unique identifier mark which can be represented by a graph and main idea is to differentiate the goods or services of one person from those of others and may include shape of goods, their packaging and combination of colours.

Cybersquatting is a cybercrime which involves imitation of a domain name in such a manner that the resultant domain name can dupe the users of the famous one with an intention to make profit out of that. This is executed by registering, selling, or trafficking of a famous domain name to encash a popular domain name’s goodwill.

When two or more people claim over the right to register the same domain name then the domain name dispute arises when a trademark already registered is registered by another individual or organization who is not the owner of trademark that is registered. All domain name registrars must follow the ICANN‘s[10] policy.

Meta tagging is a technique to increase the number of users accessing a site by including a word in the keyword section so that the search engine picks up the word and direct the users to the site despite the site having nothing to do with that word. This may result in trademark infringement when a website contains meta tags of other websites thereby affecting their business.

There are certain conditions which need to be fulfilled for a domain name to be abusive:

  1. The domain name can be said to be abusive if it gives the impression to the users of being same as another popular trademark which is a registered one and users mistakenly access the fake one made with mal intention of gaining profit by diverting users of popular trademark domain.
  2. The registrant has no legal rights or interests in the domain name.
  3. The registered domain name is being used in bad faith.

Learn more about the cyber law regime in India with Enhelion’s Diploma in Cyber Laws. 

INTERNATIONAL LAWS FOR PROTECTION OF IP IN CYBER WORLD

The various international conventions treaties and agreements for protection of intellectual property in cyberspace are : “Berne Convention (1886), Madrid Agreement Concerning the International Registration of Trademarks (1891), Hague Agreement Concerning the Registration of International Designs (1925), Rome Convention for Protection of Performers, Producers of Phonograms and Broadcasting Organizations (1961), Patent Cooperation Treaty (1970) Agreement on the Trade-Related Aspects of Intellectual Property Rights (1994), World Intellectual Property Organization Copyright Treaty (1996), World Intellectual Property Organization Performances and Phonograms Treaty (1996), and Uniform Domain Name Dispute Resolution Policy (1999), in consolidation form the international instruments that govern Intellectual Property Rights.”[11]

Berne Convention (1886) protects the IPRs in Literary and Artistic Works and for the developing countries specialised provisions are provided.

Rome Convention (1961) covers creative works of authors and owners of physical indicators of intellectual property. It permits the implementation at domestic level by member countries where the dispute falls within purview of adjudication by International Court of Justice unless resorted to arbitration.

TRIPS (1994) is a multilateral agreement on intellectual property that has the widest coverage of IPRs like copyrights and related rights.

UDRP (1999) is for the resolution of disputes on registration and use of internet domain names.

Learn more about the IP regime in India with Enhelion’s Diploma in Intellectual Property: Law and Management.

INDIAN LAWS ON IPR

Section 51 of Copyrights Act, 1957 is noticeably clear that exclusive rights are vested in the copyright owner and anything to the contrary constitutes copyright infringement thereof[12]. Since there is no express legislation to determine the liability of Internet Service Provider (ISP), Section 51 can be interpreted to fall within the ambit with respect to the facilitation of server facilities By ISPs for stockpiling user data at their business locations and which is broadcasted for making profit through charging for services and advertisements. However, to interpret in such a way the other ingredients are to be fulfilled in a cumulative manner, these ingredients are ‘knowledge’ and ‘due diligence’ to hold ISP liable in abetment of infringement of copyright.

Information Technology (Intermediaries Guidelines) Rules 2021 and Section 79 IT Act, 2000 provide conditional safeguard from liability of the online intermediaries, but at the same time its open for interpretation under any other civil or criminal Act. IT Act 2000 makes an intermediary non-liable for any third-party content hosted on its site. The 2021 Guidelines entail following of diligent approach by the intermediaries to avail protection or exemption under Section 79 IT Act, 2000. Therefore, it becomes crucial for initiative-taking judicial interpretation depending on the facts of each case.

JURISDICTIONAL ISSUES IN IP CASES IN CYBER LAW 

Cyberspace has no borders and Intellectual Property disputes have become a global concern with mixed infringements and cross border disputes. For prescription, adjudication, and enforcement of law the legal disputes will come under jurisdiction of a Court or not becomes a worrying concern as there is no clear-cut rule of law. A country as a sovereign power has powers to adopt a criminal law for to an offensive act was committed outside its borders may but which has an impact within its territory. Following the international law, Courts can assume universal jurisdiction to prosecute a cybercriminal.

Evolution of various of theories and legal concepts has been witnessed to deal with this much anxiety of jurisdictional issues with respect to adjudicating the infringements of intellectual property in cyberspace. The most significant of these are the Minimum Contacts Test, the Effects Test, and the Sliding Scale Test or ‘Zippo Test’ taken from US Courts. The Minimum contacts test is applicable where one or both parties are out of territorial jurisdiction of the Court but there is a contact with the State in which the Court is located. The Effects test is applicable at the territory of the Court the effects or injury of any cyber-crime is experienced. The Sliding Test is related to personal jurisdiction regarding the interactions with commercial information over the internet between the non-resident operators.

Section 75 IT Act, 2000 is applicable to cybercrimes committed outside India if the offence involving a computer, computer system, or computer network placed in India. Section 4 IPC, 1860 extends its jurisdiction to offences committed in any place outside India targeting a computer resource located in India. The courts in India can adjudicate against the intellectual property infringements in cyberspace and they protect the intellectual property owners by means of judicial activism and effective jurisprudence.

Learn more about the cyber law regime in India with Enhelion’s Diploma in Cyber Laws. 

CONCLUSION

Along with the technological advancements and innovations it becomes imperative to protect the sensitive data and information and the intellectual property online by resorting to stricter legal measures. As newer types of cybercrimes affecting intellectual property are cropping up, so it becomes essential to enact new laws as traditional regulations are not sufficient to render justice as the challenges faced in protection or tracing the infringers of intellectual property in cyber world is quite challenging.

For smooth sail and facilitation of global trade and e-commerce and various businesses conducted online the import and export are necessarily provided a secured atmosphere to protect IPRs. Novice and updated technological practices to protect copyrighted content is absolute necessity like encryption, cryptography, digital signatures, and digital watermarks. It is important to keep a record of all the work with ownership of IPRs to identify the author, numbers or codes involved with such works. Taking the route of legal redressal of dispute is not the only solution but it is very much required on part of copyright, patent, trademark, and various other intellectual property rights owners to be initiative-taking and take all necessary precautions in protecting their works and be updated with the current technological measures of protection for IPRs. Social engineering attacks are generated or started by people, and the answers and solutions to these problems would come from people only.

[1] Hereinafter referred to as IPR

[2] Tutorialspoint.com. 2022. Intellectual Property Right. [online] Available at: <https://www.tutorialspoint.com/information_security_cyber_law/intellectual_property_right.htm> [Accessed 14 June 2022].

[3] Ibid

[4] Ibid

[5] Ibid

[6] Legalserviceindia.com. 2022. Intellectual Property Issues in Cyberspace. [online] Available at: <https://www.legalserviceindia.com/legal/article-3233-intellectual-property-issues-in-cyberspace.html> [Accessed 14 June 2022].

[7] Shetland Times Ltd. v. Dr. Jonathan Wills and Zetnews Ltd. [1996] (Court of Session, Edinburgh).

[8] Banerjee, S., 2021. Intellectual property rights law in cyberspace. [Blog] https://blog.ipleaders.in/, Available at: <https://blog.ipleaders.in/intellectual-property-rights-law-in-cyberspace/> [Accessed 15 June 2022].

[9] Legalserviceindia.com. 2022. Intellectual Property Issues in Cyberspace. [online] Available at: <https://www.legalserviceindia.com/legal/article-3233-intellectual-property-issues-in-cyberspace.html> [Accessed 14 June 2022].

[10] ICANN (Internet Corporation for Assigned Names and Numbers) is the private, non-government, non-profit corporation with responsibility for Internet Protocol (IP) address space allocation, protocol parameter assignment, domain name system (DNS) management and root server system management functions. The Internet Assigned Numbers Authority (IANA) previously performed these services.

[11] Banerjee, S., 2021. Intellectual property rights law in cyberspace. [Blog] https://blog.ipleaders.in/, Available at: <https://blog.ipleaders.in/intellectual-property-rights-law-in-cyberspace/> [Accessed 15 June 2022].

[12] Ibid

Categories
Blog

The interplay between intellectual property law and competition law- Similarities and Differences

THE INTERPLAY BETWEEN INTELLECTUAL PROPERTY LAW AND COMPETITION LAW

This article has been authored by Riya

Intellectual property rights grant the owners exclusive legal rights, limiting others’ access to the same, and thus reducing market competition. Competition law/anti-trust law, on the other hand, seeks to promote competition and increase market access. As a result, we can see that these two topics are diametrically opposed. However, another school of thought holds that the two realms can not only coexist but also complement each other.

As a result, the goal of this article is to examine how IPR and competition law are linked and interdependent. This study focuses on the fact that in order to develop the country’s economic efficiency, both IPR and Competition Law must coexist, and this study provides guidelines to help improve the efficiency of the Indian system of Competition law and patent offices.

To learn more about Competition Law in India, enrol for Advanced Certificate in Competition Law.

  1. INTRODUCTION

Any discussion of the relationship between competition laws and intellectual property rights must start with a definition of these two terms. Intellectual Property Rights are intended to encourage inventors’ creativity by granting them certain rights over their inventions that protect their interests in them. These are exclusionary rights, which grant inventors temporary rights to exclude others from using their IPR. Competition law, on the other hand, exists to promote economic growth by restricting rights arising from private property in order to prevent anti-competitive behaviour.

Competition law seeks to preserve the competitive nature of markets because competition among market forces is critical in protecting consumers from abuse. In India, dominance is not a problem in terms of competition law; however, the abuse of that dominance is. Following liberalisation and privatisation, India has shifted to more open market policies that encourage more innovation and rapid economic growth. The Indian Competition Act was enacted in this context to preserve market competition for the benefit of consumers.

To learn more about the intellectual property regime in India, enrol for Diploma in Intellectual Property: Law and Management. 

  1. THE OBJECTIVES OF IPR AND COMPETITION LAW

It has been observed that IPR and competition law are incompatible. It is because IPR grants the innovators of a new product a monopoly that others do not have access to, or it simply protects those owners from commercial exploitation of their products by granting them exclusive legal rights. Competition law, on the other hand, is opposed to static market access and competition rules, specifically the abuse of monopoly position. As a result, it should be noted that the term “competition” is used differently by IPR and Competition Law.

The main goal of granting licences in IPR is to encourage competition among prospective innovators while simultaneously restricting competition in various ways. After a specified period, the rights revert to the public domain, effectively ending the competition. The primary goal of competition law is to prevent abusive market practices, stimulate and encourage market competition, and ensure that customers receive high-quality goods and services at a reasonable price.

According to a UNCTAD[1] document on ‘examining the interface between the objectives of competition policy and intellectual property,’ the main goal of IPR is to encourage innovation by providing appropriate incentives. This goal is met by granting inventors exclusive rights to their inventions for a set period of time, allowing them to recoup their R&D investments.

Instead, the goals of Competition Law are to promote efficiency, economic growth, and consumer welfare. To achieve them, competition law limits, to some extent, private property rights for the benefit of the community. Competition is thought to be beneficial to the economy because it fosters innovation and increases competitiveness.

Thus, we can say that IPR is about individual rights that provide monopoly only to the owner of the innovated product in order to protect his invention from commercial exploitation, whereas Commercial Law protects the interests of the market and the broader community, rather than an individual, by limiting private rights that may harm the community’s wellbeing and thus encourages market competitiveness. Despite the fact that they are diametrically opposed, their ultimate goal is consumer welfare.

To learn more about Competition Law in India, enrol for Advanced Certificate in Competition Law.

  1. THE INTERFACE BETWEEN COMPETITION LAW AND IPR

It is obvious that, at first glance, the goals of IPR and competition law appear to be at odds. They appear to be irreconcilable, with conflict and friction unavoidable. Whereas friction may be a part of the overlap between IPR and competition law, where they may clash in any case, the truth is that they also work in tandem. Their goals are aligned with their ultimate goal: to improve the welfare of consumers in society by facilitating market innovation.

They achieve this goal through various means. Whereas IPRs give innovators and producers monopoly rights to be adequately reimbursed for their research and development costs, competition law protects the rights of the entire community by limiting private rights, including those granted by IPRs, to ensure the market is free of anti-competitive behaviour, resulting in more innovation and better products for the consumer. In this way, IPRs and competition law ultimately serve to improve consumer welfare by facilitating innovation.

This goal of enabling innovation necessitates a balancing act of competition law to ensure that IPRs are not exploited and abused while still allowing enough room and incentives for a vibrant market for innovation and creativity.

The various sections which speak about the inevitable connection between IPR and competition law are:

Section 3(5) of the Indian Competition Act, 2002 exempts reasonable use of such inventions from the purview of competition law, implying that it only protects reasonable conditions imposed by the IPR holder and that any unreasonable condition imposed can be dealt with under competition law.

Section 4 of the Indian Competition Act, 2002, deals with abuse of dominant position, and it only prohibits abuse, not the mere existence of a dominant position. What is important to note for our current discussion is that no exception has been made for IPRs under this Section, possibly because IPRs do not confer dominant position in the market, and even if they do, this Section does not prohibit the mere existence of dominant position, but only the abuse of dominant position.

Section 4(2) of the Indian Competition Act, 2002, which treats enterprise action as abuse and applies equally to IPR holders,

Section (3) of the Indian Competition Act, 2002 prohibits anti-competitive practices, but this prohibition does not limit “any person’s right to restrain any infringement of, or to impose reasonable conditions necessary for protecting any of his rights” conferred by IPR laws such as the Copyright Act, 1956, the Patents Act, 1970, the Geographical Indications of Goods (Registration and Protection) Act, 1999 (48 of 1999), and the Designs Act, 2000.[2]

To learn more about the intellectual property regime in India, enrol for Diploma in Intellectual Property: Law and Management. 

  1. DIFFERENCES

The conflict between competition policy and the regime of intellectual property rights has been most contentious in the context of patent laws. The methods used to achieve their mutual goals give rise to the interface between competition policy and patent law. On the one hand, competition policy requires that no unreasonable restraints on competition exist; on the other hand, patent laws reward the inventor with a temporary monopoly that protects him from competitive exploitation of his patented article.[3]

IPR protection is a tool for encouraging innovation, which benefits consumers by allowing for the development of new and improved goods and services, as well as promoting economic growth. It grants innovators the right to legitimately bar other parties from commercialising innovative products and processes based on that new knowledge for a limited time. In other words, the law provides innovators or IPR holders with a temporary monopoly to recover costs incurred during the research and innovation process. As a result, they earn just and reasonable profits, giving them an incentive to innovate.

Competition law, on the other hand, is critical in closing market gaps, disciplining anticompetitive practices, preventing monopoly abuse, inducing optimal resource allocation, and benefiting consumers with fair prices, a wider selection, and higher quality. As a result, it ensures that the dominant power associated with IPRs is not overcomplicated, leveraged, or extended to the detriment of competition. Furthermore, while competition law seeks to protect competition and the competitive process, which in turn encourages innovators to be the first in the market with a new product or service at a price and quality that consumers want, it also emphasizes the importance of stimulating innovation as competitive inputs, and thus works to improve consumer welfare.

Despite their differences, the two regimes tend to coexist on various grounds where both disciplines prevail by limiting each other’s rights. The interface between these two areas of law is widely anticipated in many sectors of the economy, including the pharmaceutical sector, where there is a lack of consumer knowledge, which gives rise to the problem of Pay for delay/Reverse delay settlements, discrimination in patient assistance programs, ever-greening of patents, and so on, and for which the concept of ‘Compulsory Licensing’ was addressed to draw the balance between intellectual property rights and competition law so that owners of intellectual property rights cannot abuse their privileges and stifle market competition by abusing their dominant position.

To learn more about Competition Law in India, enrol for Advanced Certificate in Competition Law.

  1. JUDICIAL PRECEDENTS

In recent years, the EU and the US have received a large number of cases involving IPR and competition law disputes. However, there are very few cases in India involving IPR and Competition Law disputes; in fact, it is still in its infancy.[4] However, in Aamir Khan Productions vs. the Director-General[5], the court addressed the issue of competition law and intellectual property law for the first time. The Bombay High Court ruled in this case that the Competition Commission of India (CCI) has jurisdiction to hear all IPR and competition law cases.

Conflicts over intellectual property rights (IPRs) were typically resolved before the Monopolistic and Restrictive Trade Practices Commission (MRTP Commission), the predecessor to the Competition Commission. However, the Competition Commission of India (CCI), which enforces The Competition Act, 2002 throughout India, now handles cases involving the applicability of competition issues to both IPR and Competition Law. This Commission was established on October 14, 2003, and it went into full operation in May 2009. The CCI is made up of a chairperson and six members.[6]

Entertainment Network (India) Pvt. Ltd. vs. Super Cassette Industries Ltd[7]. In this case, the Supreme Court addressed the issue of conflict between intellectual property rights and competition law. The Court observed that, even if the copyright holder has a complete monopoly, such a monopoly is limited if it disrupts the smooth operation of the market, which would violate Competition Law, and the same was true with the refusal of licence. Undoubtedly, intellectual property owners can reap the benefits of their innovations by issuing licences, but this is not an absolute.

To learn more about the intellectual property regime in India, enrol for Diploma in Intellectual Property: Law and Management. 

  1. CONCLUSION

Competition Law and Intellectual Property Rights are inextricably linked, necessitating a balanced understanding to appreciate the true scope of their complex and multifaceted interactions in modern India’s dynamic markets. It cannot be denied that there is some necessary tension and friction in their overlap; where competition law seeks to prevent abuses that may arise as a result of monopolistic power, intellectual property rights seek, in many situations, to grant exactly such monopolistic powers to incentivize innovators to innovate. It is in the best interests of Indian society to have the two regimes operate in such a way that there is widespread competition while also providing enough protection for inventors to recoup their investments in research and development.

These two ends point to a single goal: consumer benefit through the facilitation of a robust environment for innovation. Greater innovation is enabled by organisations competing with one another to produce better and more affordable products and services, whereas IPRs enable greater innovation by providing greater incentives to innovators to benefit from their innovations.

In terms of jurisdiction, India would benefit greatly from greater maturity in the legislative framework governing the extent and scope of the CCI’s jurisdiction. Competition law should balance the IPR regime by imposing curbs wherever the exercise of IPRs exceeds “reasonable conditions,” as defined in Section 3(5) of the Indian Competition Act, 2002, but such curbs should not go beyond the extent to which the exercise of IPRs causes an appreciable adverse effect on competition.

[1] http://unctad.org/meetingsen/sessionalDocuments/ciclpd36_en.pdf

[2] Conflict of IPR in Competition Law available at: https://libertatem.in

[3] The interface between IPR and competition law. Available at: https://www.lloydlawcollege.edu.in/blog/interface-between-ipr-and-competition-law.html

[4] Forrester Ian S. Competition Law and IPR: Ten years on the debate still flourishes, http://www.eui.eu/RSCAS/Research/Competition/2005/2005 pdf.

[5] 2010 (112) Bom L R 3778.

[6] Competition Commission of India from https://en.m.wikipedia.org

[7] 2008(5)OK 719

Categories
Blog

Contracts in the Maritime Industry

This blog post has been authored by Dikshak Pankaj Soni

INTRODUCTION:

  1. The industry of the Maritime is correlated to those acts connected to waterways and/ or to the sea. The Maritime industry now-a-days impacts almost all the sectors/industries, mainly in terms of import and export (transportation) from one land to another (mostly Cargo).
  2. The second form where the Maritime industry holds its coverage is on the naval architecture, navigation, ocean engineering, exploration, drilling etc., this mainly exhausts the requirements of minerals and oil rigs in furtherance to transportation (mostly Marine Casualties).
  3. The third major form where the Maritime Industry holds its significant value is for direct consumers purpose i.e. cruise ships for travelling, tourism and recreational purpose (mostly Passenger Claims)

To learn more about the Companies Act and the roles of a Director, explore the Diploma Course on Maritime Law

MODUS-OPERANDI AND ACTS COVERED:

I. Marine Casualty:

i. Collision:

  • Due to issues caused by navigation or communication barrier/ faults/ miscommunication, there are chances of collisions between vessels travelling on/ against/ cross waved baths thereon. It is to be considered that a vessel is difficult to handle for all its acts and requirements.
  • In case of such collision, the master of the ship shall take all due endeavours for saving the lives of people on board as well as the ship to avoid maximum damage being/ to be caused due to such collision. Immediately thereafter the master shall make an entry in the official logs signed by him and the crew member, the same is then informed to the central government.
  • The Acts concerning this act shall include the Merchant Shipping Act, 1958, (Part X) and the Merchant Shipping (Prevention of Collisions at Sea) Regulation, 1975, such acts are in conscience with adopting the convention on the international regulation for preventing collision at sea, 1972.

ii. Pollution:

  • Pollution is caused by acts such overseas be it due to collision/ due to negligence by the naval, ocean engineering, exploration or drilling, or by the travel, recreational or tourism. The kinds of pollution that can be caused could be oil pollution damage, pollution by garbage and ships, pollution of oil by ships, pollution due to collision resulting in spillage in marine environment, pollution by sewage from ships, pollution by harmful substance carried by ship/ noxious substance carried by ships.
  • Such pollution attracts civil liability to the polluter. There are multiple conventions, rules and regulations that govern such pollution, one of which are International Convention on Civil Liability for Oil Pollution Damages, 1992, similarly there are multiple rules and regulations (2008 to 2010) enacted under the Merchant Shipping Act, 1958, (XB, XC and XIA) which governs such acts in regard to pollution in maritime.

iii. Salvage:

  • Due to collision, there are chances that the vessel might drift or start sinking, salvage is a process of saving such a vessel to the best possible extent, and delivering the same to the owner.
  • There ought to be a salvage agreement, where the owner shall pay a certain amount to the salvager for its services mentioned therein, the same is governed by the Merchant Shipping Act, 1958 (Part XIII) and the Merchant Shipping (Wreck and Salvage Rules), 1974.

iv. Wreck Removal:

  • When the vessel is either due to collision or malfunction, is not able to salvage or is/ started to sink to the sea bed, the process involved shall be construed as a Wreck Removal.
  • Either the owner takes full responsibility for such Wreck Removal, or the finder of such wreck shall be paid his fees/ salvage fees in such a case, or the central government may appoint a receiver to investigate and take possession of such wreck to sell such wreck under their custody. Similarly to salvage, it is governed by the Merchant Shipping Act, 1958 (Part XIII) and the Merchant Shipping (Wreck and Salvage Rules), 1974 but additionally also by the Indian Ports Act, 1908.

v. Limitation and Liability:

  • The losses caused due to collision, salvage or wreck are then subject to certain limitations and liabilities. The owner of the vessel, charter of the vessel, operator, master, crew and servant of the vessel, shall preliminarily limit their liabilities for claims under such vessel, following such the salvor, the defaulter/ neglect responsible for such actions, and later the insurer of such liability shall be limit to such liabilities.
  • The Merchant Shipping Act, 1958 (Part XA) and the Merchant Shipping (Limitation of Liabilities of Maritime Claims Rules), 2015 and its amendment rule of 2017 shall be governing the topic considered herein.

vi. The Limitation fund and Investigation:

  • The losses so caused shall be paid In terms of liabilities secured, such liabilities can be termed limited, wherein the person entitled to limit such liability shall make a reference to the appropriate jurisdictional High Court constituting a limitation fund, the High Court may decide such matter and may direct depositing such funds in the Court or through a bank guarantee.
  • The Director General of Shipping and the Maritime Marine Department shall carry out an investigation in such a case in respect of provisions under the Merchant Shipping Act, 1958 (Part XII) which deals with investigation and enquiries.

To learn more about the Companies Act and the roles of a Director, explore the Diploma Course on Maritime Law

II. Cargo Claims:

  • The term cargo mostly includes goods imported or exported. Taking into consideration the sender and the recipient, the problems that may arouse are the extent of bills of lading that defines the title of certain property sent and to be received, the carriage and its variety, feature of any kind supplied by the consignor and outward carriage i.e. from inland to outland.
  • The acts governing such claims shall include The Carriage by Goods Act, 1925, The Bills of Lading Act, 1856, The Major Ports Authority Act, 2021, the Merchant Shipping Act, 1958, the Admiralty Act, 2017, The Marine Insurance Act, 1973, the Sales of Goods Act, 1930, the Multimodal Transportation of Goods Act, 1993, etc.

III. Passenger Claims:

  • Passenger Claims shall include the losses suffered by the passenger due to any shipping incident, negligence, cancellation, refund of deposit money, delay in sailing, injury or death.
  • The acts governing such claims are vested in the Merchant Shipping Act, 1958 (part VIII) and the Admiralty Act, 2017, etc.

IV. Arrest and Security:

  • When a claim is made in regard to any acts as foreseen, and the owner/ master/ operator of the ship chooses to default in its legitimate duties in support of such claim, a claimant may make necessary reference vide an Admiralty Suit to the jurisdictional High Court for seeking an arrest of such vessel on such territorial waters and may pray for securing statutory maritime claims and liens.
  • The Admiralty Act, 2017 governs such claims of arrest, moreover, in case of outstanding freight and other charges, the Major Port Authorities Act, 2021 can also exercise its lien over the cargo in its jurisdiction. The security in such a case can be prayed in terms of cash deposit or bank guarantee. Even the Arbitration Act can entail its applicability in terms of dispute resolution, where in terms of interim relief such arrest can be procured by praying it before the concerned Court.

To learn more about the Companies Act and the roles of a Director, explore the Diploma Course on Maritime Law

CLAUSES:

While performing an international transaction in the Shipping and Maritime Industry, one must give due importance to the rules and regulations enacted by the respective jurisdictional countries and the same shall be in conscience with the provisions laid down by International Maritime Organization. Considering the modus-operandi of the Maritime Industry as aforestated, the most common types of agreements in the Maritime Industry include Marine Insurance Contracts, Import and Export Contracts, Transportation Agreement, Logistic Agreement, Affreightment Contracts, Freight Forwarding Agreements, Vessel Lease Agreement, Ship Charter Agreement, Ship/ Vessel Sale and Purchase Agreement, Ship Mortgage Agreement, Ship Management Agreement, Ship Repair, Ship Salvage and Wreck Removal Agreements, Dockage Agreement, Seafarer’s Employment Agreement, etc. Apart from the acts as aforestated, the agreement shall be on the basic principles of the Contract Act. The clauses to be included in the Agreements of Maritime Industry shall include/ safeguard/ clarify all the modus-operandi mentioned in the above chapter, certain of which are mentioned hereinbelow:

  1. Parties, recitals, and their purpose:

This is a preliminary clause of the contract which tends to mention the name address details and business of the parties, the recital which mentions the reason which lead the parties to execute that contract, and the brief purpose of that particular contract whose acceptable/ governing criteria’s shall be mentioned in the clauses mentioned thereafter.

  1. Risk Exclusion Clause:

This clause specifically mentions what kind of risk is to be excluded viz: loss in case of negligence, wilful misconduct, insurance exclusion, unsuitable condition and packing, breach of condition/ warranties, causes due to strikes, lockdown, labour disturbance, riots, civil commotion/ unrest, etc.

  1. Risk Covered Clause:

It shall mention the risk covered, such as salvage charges, loss due to unforeseen circumstances and mechanical malfunction, fire insurance, jurisdictional coverage, done in general governing law and practice, etc.

  1. Risk Attachment Clause:

This clause shall mention the subject matter of the insured which is supplied by other party of the insured. It specifically mentions what the insurance shall not attach until the risk of loss or damage to the subject matter insured shall be transferred to the Assured.

  1. Minimising Loss Clause:

In mention of this clause, it includes the acts done by the duty of assured recovery of the loss. It mentions the reasonable purpose of averting, preserving, and minimising the loss. Certainly, there are certain legislative provisions which govern minimising loss o be covered by the insurer/ owner.

  1. Duration and Transit Clause:

The subject matter mentioned herein shall include the duration/ transit time of one location to another, the same shall also mention exceptions in terms of unforeseen circumstances such as weather, salvage, collision etc.

  1. Change of Voyage Clause:

This clause mentions and safeguards the service provider in case a destination/ transit route is changed due to unforeseen circumstances, or a decision relating to minimising loss, shall also include the time and mode of transmitting such information.

  1. Termination of Contract Clause:

The Clause shall mention subject matter wherein circumstances are beyond the control of the service provider and when such the contract of carriage/ cargo/ passenger is to be terminated either at a port or at a particular location other than that of the specified destination named therein.

  1. Avoidance of Delay Clause:

This clause shall mention when the service provider shall undertake acts to avoid reasonable delay to the extent and circumstances, viz: in circumstances of unforeseen weather and change of transit time and route, etc.

  1. Claims Clause:

This clause mentions what kind of claims are to be covered by the Service Provider/ it’s insurance company either in terms of insurable interest, forwarding charges, constructive total loss, and the insured value calculation. In certain Agreement, this clause shall also mention the manner, how claims are to be requested, passed, validated, etc.

  1. Piracy and Malicious Damage Clause:

The maritime industry is subjected to piracy by sea pirates who intend to cause theft/ unrest/ untenable request, such mention of clause mentions where in case of deliberate damage to or deliberate destruction of the insured subject-matter, by the wrongful act of any person or persons causing malicious acts vandalism sabotage or piracy.

  1. Security Clause:

This clause shall mention the safety and security that the service provider tends to provide to the service receiver either cargo/ passenger, in terms of any theft/ malicious acts, vandalism/ sabotage/ piracy/ unforeseen circumstance, mechanical malfunction/ collision, etc.

  1. Weapon, Chemical, Radioactive exclusion, etc. Clause:

This clause is at times considered paramount to all the clauses mentioned in the contract, where without the due permission of law of land, approvals, permissions, and policy of the fearers, certain unwarranted and not-permitted contents/ articles shall not be allowed. This clause also nullifies the liability of the Insurer in such a case.

  1. Governance of Convention:

This clause mentions that the particular contract shall be governed by the provision of which particular international conventions and its specific articles. There are certain chances wherein either of the party’s country of origin is not a signatory party to such convention, and hence clarification in that regard is specifically mentioned.

  1. Preserve of Wild Fauna and Flora Clause:

This clause mentions that the vessel is not derogatory/ causing harm to any natural reserves/ or not causing any pollution and shall be in conscience with the international conventions in that regard. Similarly, the wild fauna and flora shall be preserved in its truest sense.

  1. Good Faith Clause:

This clause shall in its true values shall disclose clearly and accurately all material facts related to the risk involved by executing such contract, or by procuring the service of such service provider.

  1. Subrogation Clause:

The term subrogation means the right which one person has by standing in place of another and availing himself of all the rights and remedies of the other, whether already enforced or not. This clause shall be more specifically included in an insurance contract.

  1. Collision Clause:

This clause shall include what the service provider shall have liability towards, where there is a collision between two vessels/ or with any object tent to cause collision. There shall be a mention as to whether the damages and compensation to be paid is the liability of the Service Provider of the Insurer/ or the tent to choose advantage of ‘both to blame collision clause’.

  1. Salvage Clause:

This clause mentions that, in the case where there has been a mechanical malfunctioning, collision, or any act turning the ship to be salvaged, then in such a manner the claim, cost, reason/ purpose, manner and the company to undertake salvage shall be specifically mentioned herein.

  1. Wreck Removal Clause:

This clause mentions that in a manner where the ship is wrecked, there needs to be a mention where the manner/ purpose/ insurance claim shall be mentioned therein.

  1. Termination of Transit Clause:

This clause mentions the criteria eg: wreck, collision, weather condition, force majeure, terrorism, war etc, then in such a case the vessel’s transit shall be terminated in total and the claim in that regard shall be payable in the manner prescribed in the claim clause.

  1. Represent and Warrant Clause:

This is a general clause, wherein there is a mention of each party that they represent/ warrant towards each other and performance of their part in such modus-operandi.

  1. Waiver Clause:

This is a general clause, and it shall mention where one of the parties (provider) due to certain temporary circumstance, becomes unperformable, what acts shall be considered as wavier or not, similarly, it mentions when another party (receiver) may cause wavier of certain rights prejudice to him.

  1. Law and Practice Clause/ Party’s Jurisdiction Clause:

This clause shall mention the law which is to be followed in due course/ or at the time of enforcement. In terms of specific jurisdiction, there shall be a mention of such specific jurisdiction and the law/ practice and convention to be governed with.

  1. Disclaimer and indemnity Clause:

This clause shall specifically mention what the service provider tends to disclaim its liability towards, similarly there may also be a reference as to what the service provider tends to indemnify the service receiver towards, or vice versa.

  1. Dispute Resolution Clause:

In similar to the aforesaid, this is also a general clause, where there is a mention of Dispute if in case arisen and the provision in the way such dispute is to be resolved wither first by mutually, then by mediation, or by way of Arbitration. In the case of Arbitration, there needs to be a specific mention in terms of the Arbitration clause. The language and location of such Dispute Resolution are also to be mentioned.

  1. Force Majeure Clause:

This is a general clause, which mentions the wavier (temporary) of one of the parties for the performance of their part of the contract, in a situation beyond the control of either of the party, e.g.: natural calamities.

JURISDICTION AUTHORITY (SUBJECT TO LAW OF LAND AND INTERNATIONAL CONVENTIONS):

  1. Concerned High Court where certain territorial waters have jurisdiction for, and the kind and nature of relief which is claimed is beyond the powers/ finding/ disposal of the Mediation/ Conciliation or the Arbitration Tribunal.
  2. Arbitration Tribunal shall have limited jurisdiction, subject to the applicable Arbitration law of the land, disputes relating to contract act/ validation/ interpretation etc.
  3. Mediation and Conciliation shall be subject to the decision of the parties effecting, and the mode/ veracity of dispute that may have arisen.

To learn more about the Companies Act and the roles of a Director, explore the Diploma Course on Maritime Law

Categories
Blog Online law courses in India Online legal courses

Role of Director under the Companies Act, 2013

This article has been written by Mr. Abhishek Sinha

INTRODUCTION- Role of Director

A company’s management and affairs are overseen by the Board of Directors, which has supreme executive authority. In a company, majority shareholders at their wish can appoint a director during the incorporation of the company. Notice to the Board members can be used to call an Annual General Meeting if the shareholders wish to change the director expressing their opinion. Under the Companies Act, 2013, the MoA and AoA of the company, Directors are allowed to enforce their powers.

There is no exhaustive definition given in the Companies Act, 2013. As per Section 2 (34) of the Companies Act, 2013 – a “Director” is one who has been appointed to the Board of Directors. He is the individual who is assigned to carry out the responsibilities and functions of a company’s director in accordance with the Companies Act of 2013.

Lord Reid in the case of Tesco Supermarkets Ltd. v. Nattraso[1] held that “A living person has a mind which can have knowledge or intention and he has hands to carry out his intention. A corporation has none of these it must act through living persons.” As per the Supreme Court, it is important to appoint an individual as a director in the company as the director’s office is the office of trust and if someone fails to carry out this trust then someone should be held responsible.[2] Section 149 of the Companies Act, 2013 states that the Board of Directors shall consist of individuals as directors. Lord Bowen held that the Board of Directors are the brain of the company and the company does act only through them. [3]

To learn more about the Companies Act and the roles of a Director, explore the Certificate course in Understanding Companies Act, 2013. 

 

WHAT ARE THE ROLES OF DIRECTOR? 

As a member of the Board of Directors, he is in charge of the company’s management, supervision, and direction. Directors are said to be the agents of the company, officers of the company and also trustees of the company. Professional men are hired by the company to direct the affairs of the organisation still they are not called the servant of the company.[4] But through a separate service agreement, a director can offer his professional services to the company as a sole employee and sole director.[5] Regarding the position or role of directors in the company, there is mere silence in the Companies Act, 2013. As per Bowen LJ, “Directors are called as agents, MD or trustees. But these expressions are used as indicating useful points of view through which they may for that particular period and the particular purpose is considered instead of using it as exhaustive of their powers and responsibilities.”[6]

I. As Employee

If the Board of Directors appoints and the company’s shareholders approve any full-time director who manages the company’s day-to-day operations as an employee.

In the outline of the employment letter issued by the BoD, all the directors make go an organization.

II. As Officer

  • High Court of Calcutta held that “Certain officials of the company should be treated as organs of the company so that for actions of that particular official company can be held liable just as a natural person is for the action of his limbs.”[7] The absence of the director can paralyze the company.

As per section 2 (59) of the Companies Act, 2013, the director is treated as an officer of the company on whose directions other directors or Board of Directors are accustomed to act. As per section 2 (60) of the Companies Act, 2013, the director is considered an “officer in default” and he is even punished as an officer in default for non-compliance with provisions.

III. As Agents of the Company

  • As per the Observation of Lord Cairns who believed that Public Company Directors are the agents of the Company. The Company and Directors have a relation of Principal and Agent.[8]

In an Agency a person is bound to form, Perpetuate a relationship of Principal with third parties, the role and powers they get from Memorandum and Articles of the Company, if their activities are outside the criteria given under MOA and AOA, it is beyond legal Power.

IV. As Trustee of the Company

  • Based on an analogy Lindley LJ observed that Director is always considered and treated as trustees of the company as they have control of the company and they have been held liable to make good amounts of money since the invention of joint-stock companies.

They are considered the custodian of the assets of the company and are responsible to use the assets in the best interest of the company, as a trustee of the company. They would be held liable if they misuse or divert the assets in their vested interests.

To learn more about the Companies Act, explore the Certificate course in Understanding Companies Act, 2013. 

 

DUTIES OF DIRECTORS AS PER LEGAL PROVISIONS UNDER THE COMPANY ACT, 2013

The Companies Act of 2013 categorises the duties and responsibilities of directors into two categories: —

[i] The responsibilities and liabilities that uplift and advance the investment of directors’ work bring good corporate governance, good management, and making fully-fledged and shrewd decisions to avoid unnecessary risks to the company.

[ii] Fiduciary duties guarantee and ensure that the directors of companies always protect and secure the interests of the company and its stakeholders, above their self-interests.

The duties of a director were not expressed in the 1956 Act, however, they are specifically stated in Section 166 of the Companies Act, 2013[9].

SECTION 166 of the companies Act, 2013 lay down the following Duties of the Directors of a Company

Directors of Company are bound to do the following Duties given Under Section 166 of the Companies Act, 2013

  • Activities of the Director shall always be in accordance with the AoA[10].
  • Director shall perform in good faith in order to uplift the objects of the organisation, for the profit of shareholders and for the well-being of the organization[11].
  • He shall follow his duties with proper care and exercises independent judgment[12].
  • He shall not perform any act which give rise to conflicts.
  • Director shall be held liable to pay an equal amount to the gain if he found to be gaining any undue advantage[13].

 

ROLE OF DIRECTORS DURING THE PANDEMIC

Pandemic has affected most of the big companies and due to this, they have also suspended their work for the time being. As cases are reducing these days but still due to mass gathering companies are not able to work at full capacity. So here the role of directors during the pandemic is that he needs to take certain steps for the survival of the organization in this pandemic. Primary considerations of the directors are:

I. Procuring the shareholder’s interest

  • As shareholders always look to have transparency and honesty from the companies’ end. The company shall inform the respective shareholders about the crisis plan which they are going to use to tackle the challenges caused due to covid-19. And directors should pay dividends to the shareholders if the company has a good amount of cash reserves. Director shall inform the current situation of the organisation.

II. Health and safety of employees

  • Directors shall emphasize the safety and health of their workers, employees and suppliers. It’s their basic responsibility to build a safe environment during the lockdown. Work from Home should be allowed during the pandemic and in extreme cases, they shall be called to offices and factories. Director shall comply with the government circulars and advisories. To prevent data breaches or losses there shall be proper data security measures.

III. Avoid conflicts of interest

  • The director shall avoid any personal interest while taking the decision for the company and he shall also not engage himself in an act which can give rise to a conflict of interest. All relevant information shall be disclosed by the director to the board as failing to do this can be a reason for dispute with shareholders and which can result in damage to long terms prospects.

IV. Independent decisions shall be made

  • Director shall act in good faith to promote the long interest of the company. He should avoid making decisions which can affect the company in long run.

 

CONCLUSION

The Directors of the Company play a crucial role in the Company, They play an essential part in managing and directing the course of the Company.

The company’s main motive is to run in a successful manner, to hand over the management of the Company in the hand of a responsible person. In this regard Company has a Board of Directors who runs the Company with the greatest responsibility, if the Director’s action causes mismanagement in the Company then the Director is liable to the company for reimbursement of the loss.

To learn more about the Companies Act, explore the Certificate course in Understanding Companies Act, 2013. 

 

[1] [1977] AC 153 at 170.

[2] Oriental Metal Pressing Works P. Ltd. v B. K. Thakoor, [1961] 31 Comp Cas 143.

[3] Bath v Standard Land Co.

[4] Moriarty v Regent’s Garage and Engg. Co., [1921] 1 KB 423.

[5] Lee v. Lee’s Air Farming Ltd., [1961] AC 12.

[6] Imperial Hydropathic Co. v. Hampson, [1882] 23 Ch. D. 1.

[7] Gopal Khaitan v State, AIR 1969 Cal 132.

[8] Ferguson v Wilson, [1886] LR 2 Ch 77.

[9] Section 166, Companies Act, 2013.

[10] Section 166(1), Companies Act, 2013.

[11] Section 166(2), Companies Act, 2013.

[12] Section 166(3), Companies Act, 2013.

[13] Section 166(4), Companies Act, 2013.

Categories
Blog

Right to be forgotten in India

Unlike the EU, India does not have any existing legal framework which recognises the right to be forgotten. However, the Indian courts have taken varying views in respect to whether such right exists in India as yet. In Dharamraj Bhanushankar Dave v. State of Gujarat & Ors., the Gujarat High Court denied the existence of such right. However, the Karnataka High Court in Sri Vasunathan v. The Registrar General & Ors. recognised it. Recently, in 2020, the Orissa High Court in Subhranshu Rout @ Gugul v. State of Odisha, emphasized the importance of ‘right to be forgotten’.

Learn more about Data Protection laws in India with Enhelion’s Certificate course on Information Security and Data Protection.

Though the existence of such right is unclear right now, however, the PDP Bill, 2019 has a dedicated provision on the ‘Right to be forgotten’. According to Clause 20 of the Bill, the data principal enjoys the ‘right to restrict or prevent the continuing disclosure of his personal data’ by a data fiduciary if– 

  1. The purpose for which the data was collected is fulfilled;
  2. The data principal has withdrawn his consent; 
  3. The disclosure was made contrary to the provisions of the bill or any other law in force.

The provision further provides that such right can only be enforced by virtue of an order by the Adjudicating Officer, after the data principal has made an application on the grounds mentioned above. The burden of proving that this right overrides the freedom of speech and expression and the right to information of any other citizen, is on the data principal

Learn more about Data Protection laws in India with Enhelion’s Certificate course on Information Security and Data Protection

The provision further provides for the factors which the Adjudicating Officer should take into account, while making the order. Such order can be reviewed by the Adjudicating Officer himself, and any order made by the Adjudicating Officer can also be appealed to the Appellate Tribunal. 

Therefore, on analysis of the provision of right to be forgotten under the PDP Bill, 2019, it is apparent that its scope is very limited compared to the scope it enjoys under the GDPR. The Bill merely provides for restricting or preventing continued disclosure of information, as opposed to GDPR which provides for complete erasure.

Learn more about Data Protection laws in India with Enhelion’s Certificate course on Information Security and Data Protection

Categories
Blog

Development of Cybercrime Law in the United Kingdom

Development of cybercrime law in the United Kingdom

The enactment of computer crime specific legislation or cybercrime law in the United Kingdom can be attributed to a number of cases which highlighted the issue of absence of such legislation and the subsequent acquittal of individuals.

R v. Thompson

Firstly, in R v. Thompson,[1] the appellant in Kuwait, had fraudulently caused a bank to credit certain bank balances in England. The access was authorized, however, such access was used for an unlawful purpose. The Theft Act of 1968 was sought to be applied[2]. The primary issue was that of jurisdiction (Kuwait or England) as well as identifying the victim. The court held that for applying the Theft Act, the identification of a human victim is a prerequisite. However, in the present case, the computer system was deceived, rather than a human mind. This highlighted the inadequacy of the existing legal framework to deal with cases where computer was a victim of a crime, rather than a mere facilitator.

R v. Gold and Schifreen

Secondly, in R v. Gold and Schifreen,[3] certain individuals got access to the files contained in British Telecom Prestel Network by seeing the username and password entered by the authorized person, over his shoulders. The accused were charged under the Forgery and Counterfeiting Act of 1981. However, the court held that the accused cannot be prosecuted under the said Act as the use of recorded electronic information did not fall under the definition of ‘false instrument’[4]. Therefore, the act committed by the accused does not come under the ambit of the Forgery and Counterfeiting Act. The outcome of this case highlighted that new age crimes (cybercrimes) cannot be prosecuted under the traditional criminal laws.

Learn more about Cyber Laws with Enhelion’s Online Law firm certified Diploma Course on Cyber Law.

It is pertinent to note that there were a series of case laws wherein the court adopted a more liberal approach to include the new age crimes within the ambit of traditional laws. In Cox v. Riley,[5] the court held that ‘damage’ implies any injury impairing the value and usefulness. Such injury need not be apparent to the naked eyes. Therefore, deleting program from a computer-controlled machine, which renders it unusable, constitutes ‘damage’ under the Criminal Damages Act, 1971. A similar approach was adopted in R v. Whiteley[6].

The increasing instance of computer crimes, the failure of court to effectively prosecute individuals who committed computer crimes, and the significance of ensuring effective prosecution by broadening the scope of existing laws, had a combined effect which led to the enactment of the Computer Abuse Act of 1990[7] in the United Kingdom.

Originally, the 1990 Act brought within its ambit, three categories of offences-

  1. Unauthorized access to programs or data[8];
  2. Unauthorized access with further criminal intent[9] and
  3. Unauthorized modification of data[10].

In Ellis v. DPP,[11] section 1 of the Act was interpreted, and the court held that unauthorized access, even though in absence of damage, comes under the ambit of the 1990 Act.

Learn more about Cyber Laws with Enhelion’s Online Law firm certified Diploma Course on Cyber Law.

The 1990 Act addressed the issue of jurisdictional challenge in cases of computer crime by making it an offence to use a computer in the home country to commit a crime in another country and to commit a crime in the country from a computer in another country[12].

It is pertinent to note that the 1990 Act was not well equipped to deal with computer crimes per se in a comprehensive manner. The issue with respect to section 2 of the Act was highlighted in R v. Bedworth[13], wherein while proving intent, addiction was recognized as a defense. As a result, the Jury acquitted the accused.

Learn more about Cyber Laws with Enhelion’s Online Law firm certified Diploma Course on Cyber Law.

[1] R v. Thompson, (1984) 79 Cr App R 191.

[2] Theft Act, 1968, § 15.

[3] R v. Gold and Schifreen, CACD [1987] QB 1116.

[4] Forgery and Counterfeiting Act, 1981, s. 8(1)(d).

[5] Cox v. Riley, [1986] QBD.

[6] R v Whiteley, [1991] 93 CAR 25.

[7] Computer Abuse Act, 1990.

[8] Id., § 1.

[9] Supra note 18, § 3.

[10] Supra note 18, § 2.

[11] Ellis v. DPP, [2001] EWHC 362.

[12] Supra note 18, § 4.

[13] R v. Bedworth, 1991.

Categories
Blog

Development of Telecommunication Law in British India

The communications system forms the basis of the economic development of a country and plays a key role in every aspect of an individual’s life. The communications system in India has come a long way from the use of telegrams in the 1850s to the extensive use of the Internet in the present times. It is pertinent to note that the foundation of telecommunications in India was laid by the British East India Company (referred to as ‘EIC’ hereafter), and was later developed by the British Government, under the British Crown.

  • Development of Telegraph services under the British regime

Research in the field of telegraph started in India way back in 1833 when a 24-year-old assistant surgeon with the East India Company (EIC), Mr. William O’Shaughnessy, started experimenting with electricity.[1] In 1839, he set up a 13.5-mile-long demonstration telegraph system near Calcutta.[2] During the same time, Samuel F.B. Morse was developing his own demonstration system back in the United States.[3] However, O’Shaughnessy was completely unaware of this development, and therefore, used a different code which was indigenously developed. On successful experimentation, he published a pamphlet about his work, but he was unable to catch the attention of the EIC.

Learn more about Technology Law with Enhelion’s Online Law firm certified Master Course! 

The state of affairs changed in 1847 when Lord Dalhousie was appointed as the Governor-General of India.[4] He showed real interest in developing public works like roads, canals, railways, and postal services in India. He also envisioned the potential of the telegraph invented by O’Shaughnessy and authorized him to build a 30 miles long line near Calcutta. This was the first experimental electric telegraph line in India which started between Calcutta and Diamond Harbour in 1851[5]. The success of this electric telegraph line incentivized Lord Dalhousie to authorize O’Shaughnessy to build telegraph lines across India.[6]

O’Shaughnessy completed the work assigned to him by 1854, and as a result, Calcutta was linked to Agra, Bombay and Madras by the telegraph network.[7] From 1851 till 1854, the telegraph was strictly limited to use by the EIC. In April 1854, first telegram was sent from Mumbai to Pune and electronic telegraph facilities were made open to use by the public[8]. Taking these developments and the subsequent need for legislation to regulate the establishment and management of electronic telegraphs in India into consideration, the Electronic Telegraphs Act of 1854[9] was enacted. The 1854 Act provided exclusive right to establishing telegraph lines in India to the EIC, however, the Governor-General of India in Council was given the power to grant the license to any person or company to establish a line[10]. The Act further established a separate Electric Telegraph Department[11]. The Act penalized the laying down of telegraph lines in contravention of the provisions of the Act.[12] It also penalized the persons who willfully caused interruption to the transmission of signals[13].

Learn more about Technology Law with Enhelion’s Online Law firm certified Master Course! 

The development of the telegraph system continued and by 1856, 4000 miles of Indian telegraph system was established connecting Calcutta, Agra, Bombay, Peshawar, and Madras.[14] It is believed that the Indian telegraph service played an instrumental role in suppressing the 1857 sepoy mutiny.[15] It proved to be a critical military tool by rapidly providing a reliable system of information which was used by the EIC to mobilize its troops. Owing to the significance of the telegraph network in suppressing the 1857 revolt, a number of Indians tried to destroy the same as an act of vengeance.[16]

The 1857 sepoy mutiny led to a significant change in power in the Indian colony. The Electric Telegraph Act of 1854 was repealed, and the Telegraph Act of 1860[17] was enacted to reflect the shift of power from British EIC to the British Crown. The 1860 Act brought two significant changes to its predecessor. Firstly, it gave the exclusive power previously enjoyed by the EIC to the Governor-General of India in Council[18]. The Governor-General also retained its power to grant licenses to private individuals and companies for establishing the telegraph lines. Secondly, considering the attempts of Indians to destroy the telegraph network post-1857 revolt, the Act of 1860 increased the number of penalties for intruding into the signal room[19] and cutting the line[20].

Learn more about Technology Law with Enhelion’s Online Law firm certified Master Course! 

The developments in the telegraph system in India were accelerated once submarine cables were completed between India and Britain in 1870.

The next significant step in the evolution of communications services in India was the enactment of the Indian Telegraph Act of 1876[21], which repealed the 1854 Act[22]. The 1876 Act was applicable to the whole of British India as well as British subjects in the Princely States[23]. The Act is considered as the first comprehensive legislation regulating telegraph services in India. It defined the terms like ‘telegraph’, ‘telegraph officer’ and ‘message’[24]. ‘Telegraph’ was defined as an electric or magnetic telegraph[25]. Just like the 1854 Act, the Governor-General retained his power of exclusive privilege and the right to grant a license under the 1876 Act.[26] The Act further increased the penalties for causing destruction to the telegraph network. The most peculiar feature of the 1876 Act was the provision for the deployment of additional police in places where mischief to telegraphs was repeatedly committed[27]. In such a scenario, the inhabitants of such a place were required to bear the cost of such deployment[28].

Learn more about Technology Law with Enhelion’s Online Law firm certified Master Course! 

After the 1876 Act came into force, in 1880, two private telephone companies namely Oriental Telephone Company Ltd. and The Anglo-Indian Telephone Company Ltd. approached the Governor-General of India to propose establishing telephone exchanges in India.[29] They were denied permission on the ground that the introduction of telephones was a Government monopoly and hence the Government itself would commence the work.[30] However, in 1881, the decision was reversed and Oriental Telephone Company Ltd. was granted a license for opening telephone exchanges at Kolkata, Mumbai, Chennai and Ahmedabad. The telephone came to India a little later in 1882.[31]

In 1883, the telegraph services were combined with postal services.[32] In the meanwhile, a Bill proposing the repeal of the 1876 Act was tabled to the Council. The Bill suggested modification of the definition of ‘telegraph’ to be in consonance with the developments in Britain. It also suggested the creation of a new category of penalties. This led to the enactment of the Telegraph Act of 1885[33]. The Act broadened the definition of ‘telegraph’ to include “appliances and apparatus for transmitting or making telegraphic, telephonic or other communications by means of electricity, galvanism or magnetism”[34]. The Act also created a Telegraph Authority, which meant the Director-General of Telegraphs and included any officer empowered by him[35]. Just like its 1860 and 1876 predecessors, the Governor-General enjoyed the exclusive privilege and the right to grant a license under the 1885 Act as well. The Act further granted the power to Government to take possession of licensed telegraphs to intercept messages[36].

Learn more about Technology Law with Enhelion’s Online Law firm certified Master Course! 

In 1888, overseas communications were merged with the Director-General of the Indian Telegraph Department.[37]

The next significant development took place in 1902 when cable telegraphs were changed to wireless telegraphs.[38] Therefore, in 1902, the Indian telegraph services went wireless. Furthermore, in 1914, a big administrative change happened. The Postal Department and the Telegraph Department were amalgamated under a single Director-General by amending the definition of ‘telegraph authority under the 1885 Act[39].

The 1885 Act underwent a number of changes in the years 1914, 1930 and 1937. As per the amendment of section 4 in 1914, the Government was given the power to establish and maintain wireless telegraphs on ships within Indian territorial waters and telegraphs other than wireless telegraphs[40]. This provision was further amended in 1930 to include the use of wireless telegraphy on aircraft[41].

  • Development of Radio broadcasting services under the British regime

Respect to radio broadcasting, broadcasting was introduced as a private venture through radio clubs in Calcutta, Madras, Bombay and Lahore in 1923 and 1924.[42] In June 1923, the Radio Club of Bombay made the first-ever broadcast in India. In 1927, Calcutta Radio Club was established. During this time period, there was a daily broadcast of 2-3 hours of music and talks. However, most of these stations faced liquidation within three years of their establishment due to insufficient finances.[43]

The year 1927 also witnessed an agreement between the Government and a private company named Indian Broadcasting Company Ltd. (IBC).[44] This agreement led to the setting up of the Broadcasting Service which began broadcasting in 1927 on an experimental basis in Bombay and later in Calcutta. However, IBC faced liquidation within 3 years of its establishment.[45] The government acquired its assets and established the Indian Broadcasting Service under the Department of Labour and Industries.[46] Since then, broadcasting has remained under the control of the Government in India.

Learn more about Technology Law with Enhelion’s Online Law firm certified Master Course! 

Following the establishment of the Indian Broadcasting Service, in 1935, Lionel Fielden was appointed the first Controller of Broadcasting.[47] In the same year, a private radio station, Akashvani Mysore, was set up.[48] In 1936, a radio station was commissioned in Delhi.

The next significant step in the development of radio broadcasting services in India was the renaming of the Indian State Broadcasting Service as ‘All India Radio’, or AIR in June 1936.[49] A new signature tune was added to AIR. The Delhi radio station, established in the same year, became the nucleus of broadcasting at the national level. In 1937, AIR was brought under the Department of Communications and in 1941, under the Department of Information and Broadcasting. The Department of Information and Broadcasting was again changed to the Department of Information and Broadcasting (I&B) on 10th September 1946.[50]

Radio broadcasting underwent considerable developments during World War II. By 1939, the entire country was covered by short-wave service. Taking into account the outbreak of World War, the programme structure of radio underwent a change to meet wartime contingencies. News and political commentaries were introduced and special broadcasts were made for the people on the strategic north-eastern and north-western borders.

  • Regulation of Wireless Telegraphy in the British regime

Wireless telegraphy in India developed in line with the development of radio services. One of the major sources of revenue for the Indian State Broadcasting Service was revenue from the licence fee for working of wireless apparatus under the Indian Telegraph Act, 1885. Owing to the lack of legislation dealing with the unlicensed use of wireless apparatus, the Indian State Broadcasting Service faced substantial revenue losses. To deal with the unlawful possession of wireless telegraphy apparatus, the Indian Wireless Telegraphy Act of 1933[51] was enacted.

Learn more about Technology Law with Enhelion’s Online Law firm certified Master Course! 

The 1933 Act defined terms like ‘wireless communication’ and ‘wireless telegraphy apparatus.[52] The Act prohibited the possession of wireless telegraphy apparatus without a license under section 4. The telegraph authority under the Indian Telegraph Act of 1885 was given the power to issue licenses to possess wireless telegraphy apparatus under the Act[53]. The act of possession of wireless telegraphy apparatus without a license was made a punishable offence[54].

  • The relevance of Communication Laws enacted in the British regime after the coming into force of the Constitution of India in 1950

When India became independent, there were over 7000 telegraph offices and about 300 state-owned telephone services, across the country. Furthermore, there were 6 AIR stations at Delhi, Bombay, Calcutta, Madras, Lucknow and Tiruchirapalli, with 18 transmitters, among which six were on the medium wave and the remaining were on short wave.

The legal regime governing the telecommunications sector in India developed to a considerable extent after independence owing to technological changes, however, it is pertinent to note that the government decided to adopt certain key legislation relating to the telecommunications sector which was in force during the British regime. The most significant adoption was the exclusive privilege over the telegraph service and right to grant a license, enjoyed by the Government over the telecommunications sector in the British regime. This status was adopted in the Constitution of India by virtue of Entry 31 of List I in Schedule 7 which puts ‘posts and telegraphs, telephones, wireless, broadcasting, and other like forms of communications’ in the exclusive domain of the Union List[55]. The then Prime Minister of India, Jawaharlal Nehru, was also of the opinion that the telecommunication sector should be retained by the Central Government owing to its criticality to the development of India.

The Telegraph Act of 1885 was amended in the year 1948 to substitute the word ‘Provinces’ with ‘India’[56]. Although the definition of ‘telegraph’ has been amended in the subsequent years to ensure that technological development does not leave out certain services from being regulated by the state, however, the basic premise of the 1885 Act has remained intact over the years.

Learn more about Technology Law with Enhelion’s Online Law firm certified Master Course! 

The Wireless Telegraphy Act, 1933 too is still in existence and retains most of the provisions of the original Act.

With respect to radio broadcasting services, All India Radio is in existence even today, under the control of the Ministry of Information and Broadcasting.

Therefore, the British regime did not only help India in laying the infrastructural foundations of communications, it also helped to develop a legal regime governing the same. This legal regime is still operational, with certain amendments aimed at adopting the dynamic nature of technology.

Learn more about Technology Law with Enhelion’s Online Law firm certified Master Course! 

[1] John H. Lienhard, Indian Telegraph, https://www.uh.edu/engines/epi1380.htm (last visited Apr. 20 2021).

[2] Id.

[3] Indian telegraph Service, INDIAN PHILATELY, http://www.indianphilately.net/indiantelegraph.html (last visited Apr. 20 2021).

[4] Lienhard, Supra note 1.

[5] Development of posts and telegraph during the British rule, https://madhyapradesh.pscnotes.com/modern-history/development-of-posts-and-telegraph-during-the-british-rule/ (last visited Apr. 20 2021).

[6] Lienhard, Supra note 1.

[7] Supra note 3.

[8] Maninder Dabas, Today in 1854, first telegrpoh was sent in India, INDIA TIMES (Apr, 27, 2017, 4:15 PM), https://www.indiatimes.com/news/today-in-1854-first-telegram-was-sent-in-india-between-mumbai-and-pune-here-is-all-about-the-telegraph-service-that-ende.

[9] Electronic Telegraphs Act, 1854, available at https://www.wipo.int/edocs/lexdocs/laws/en/in/in116en.pdf.

[10] Id, § 1.

[11] Supra note 9, § 7.

[12] Supra note 9, § 2.

[13] Supra note 9, § 9.

[14] Lienhard, Supra note 1.

[15] Michael Mann, The deep digital divide: The telephone in British India, 35(1) HISTORICAL SOCIAL RESEARCH 188, 200 (2010).

[16] Id.

[17] Telegraph Act, 1860, available at https://www.wipo.int/edocs/lexdocs/laws/en/in/in117en.pdf.

[18] Id, § 2.

[19] Supra note 17, § 9.

[20] Supra note 17, § 10.

[21] Indian Telegraph Act, 1876, available at https://www.wipo.int/edocs/lexdocs/laws/en/in/in118en.pdf.

[22] Id, § 2.

[23] Supra note 21, § 1.

[24] Supra note 21, § 3.

[25] Id.

[26] Supra note 21, § 4.

[27] Supra note 21, § 16.

[28] Id.

[29] Gopika G G, Growth and development of telecom sector in India- An overview, 16(9) IOSR-JBM 25, 26 (2014).

[30] Id.

[31] Id.

[32] Id.

[33] Telegraph Act, 1885, available at https://www.wipo.int/edocs/lexdocs/laws/en/in/in119en.pdf.

[34] Id, § 3(1).

[35] Supra note 33, § 3(6).

[36] Supra note 33, § 5.

[37] Id.

[38] Gopika G G, Growth and development of telecom sector in India- An overview, 16(9) IOSR-JBM 25, 33 (2014).

[39] Supra note 33, § 3(6).

[40] Act 7 of 1914.

[41] Act 27 of 1930.

[42] Growth and development, PRASAR BHARTI, https://prasarbharati.gov.in/growth-development-air/ (last visited 20 Apr. 2021).

[43] Id.

[44] Alasdair Pinkerton, Radio and the Raj: Broadcasting in British India (1920-1940), 18(2) JOURNAL OF THE ROYAL ASIATIC SOCIETY 167, (2008).

[45] Id. at 175.

[46] Id.

[47] Id.

[48] Supra note 42.

[49] K.C. Archana, 80 years of AIR: Remembering the golden days of All India Radio, INDIA TODAY (June 8, 2016, 3:51 PM), https://www.indiatoday.in/fyi/story/80-years-of-air-remembering-the-golden-days-of-all-india-radio-12987-2016-06-08.

[50] Id.

[51] Indian Wireless Telegraphy Act, 1933, available at https://www.wipo.int/edocs/lexdocs/laws/en/in/in037en.pdf.

[52] Id. § 2.

[53] Supra note 51, § 5.

[54] Supra note 51, § 6.

[55] Constitution of India, 1950, Schedule VII, List I, Entry 31.

[56] Act 45 of 1948.

Categories
Blog

Development of Cybercrime Law in the European Union

At the European Union level, although the possibility of having a comprehensive legal framework dealing with cyber crimes was not a far stretched idea owing to the cooperation at the Union level, however, this idea was not considered until the late 1990s.

Taking into account the growing incidents of cyber crimes, their peculiar nature, and the essential element of international cooperation in this regard, a series of initiatives were taken at the EU level in the form of recommendations and Council conclusions. This was followed by the first legislative proposal by the Commission in early 1998 to deal with certain aspects of computer crimes, i.e. credit card frauds and forgery of non-cash means of payment. However, it was only in May 2001 that the Framework Decision on Combating Fraud and Counterfeiting of Non-Cash Means of Payment was adopted.[1]

Learn more about Technology Law with Enhelion’s Online Law firm certified Master Course! 

During the same time, the Council of Europe was taking a number of steps and engaging in negotiations, in collaboration with the G8 countries, USA, Canada, Japan, United Kingdom, Germany, France, Italy, and Russia, with respect to judicial cooperation in this field.  As a result, an agreement was reached in 1997 pertaining to an action plan to combat high-tech and computer-related crimes. One of the action plan’s initiatives is the 24/7 network of law enforcement contact points to combat cybercrime, which is now a part of the current legal framework at the EU level. This network furthers the objective of international cooperation, specifically with respect to the investigation of cybercrimes.

In October 1999, the G8 met again as a follow-up measure of the action plan. This follow-up concluded that the biggest roadblock in combating computer crimes is the identification and tracking of criminals in cyberspace. To overcome this roadblock, many principles were adopted to ensure transnational access to data, simplified mutual assistance, and general permission to access publicly available material in another state without express permission. These principles now form the basis of the current legal regime at the EU level[2].

Meanwhile, the European Committee on Crime Problems[3] (CDPC) decided to set up a committee of experts to deal with cyber-crime in November 1996. Subsequently, the Report submitted by Professor H.W.K. Kaspersen concluded that “it should be looked to another legal instrument with more engagement than a Recommendation, such as a Convention. Such a Convention should not only deal with criminal substantive law matters but also with criminal procedural questions as well as with international criminal law procedures and agreements”.[4]

Learn more about Technology Law with Enhelion’s Online Law firm certified Master Course! 

Taking into account the Report submitted to the CDPC, the Council of Europe was successful in formulating the Convention on Cybercrime[5], with an aim to bring minimum harmonization in the acts termed as ‘cybercrime’ in the Member States of the EU.

The Explanatory Report of the Cybercrime Convention highlights the changing nature of crimes and the subsequent need to develop a legal framework to prosecute such crimes exclusively. It states that-

The technological developments have given rise to unprecedented economic and social changes, but they also have a dark side: the emergence of new types of crime as well as the commission of traditional crimes by means of new technologies.[6] Criminals are increasingly located in places other than where their acts produce their effects. However, domestic laws are generally confined to a specific territory. Thus, solutions to the problems posed must be addressed by international law, necessitating the adoption of adequate international legal instruments”.[7]

The Convention on Cybercrime adopts a holistic approach in dealing with both substantive and procedural aspects[8] of cybercrimes at the EU level. Section 1 of Chapter II covers both criminalization provisions and other connected provisions in the area of computer or computer-related crime by defining nine offences (illegal access, illegal interception, data interference, system interference, misuse of devices, computer-related forgery, computer-related fraud, offences related to child pornography and offences related to copyright and neighbouring rights) grouped into four different categories (offences against the confidentiality, integrity and availability of computer data and systems, computer-related offences, content-related offences and offences related to copyright and neighbouring rights)[9]. It further deals with ancillary liability and sanctions[10].

Learn more about Technology Law with Enhelion’s Online Law firm certified Master Course! 

Furthermore, the Convention also contains provisions for traditional as well as computer crime-related mutual assistance and extradition.[11] It also provides for transborder access to stored computer data without mutual assistance, either with consent or without consent, in the case of publicly available data. It also provides for the setting up of a 24/7 network to ensure speedy assistance among the Parties.

Lastly, at the Union level, to address the issue of cooperation at, the Union level, the European Network and Information Security Agency (ENISA) was established in 2004. ENISA was given the responsibility to develop expertise to enhance cooperation between public and private sectors and provide assistance to the Commission and Member States of the EU in their dialogue with industry for the purpose of addressing security-related problems in hardware and software products. It was also required to promote risk assessment activities as well as interoperable risk management routines.[12]

Learn more about Technology Law with Enhelion’s Online Law firm certified Master Course! 

[1] EUR-Lex, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32001F0413 (last visited May 3, 2021).

[2] These principles can now also be found in the Cybercrime Convention.

[3] Decision CDPC/103/211196.

[4] Salaheddin J. Juneidi, Council of Europe Convention on Cyber Crime, IPICS (2002).

[5] The Cybercrime Convention.

[6] Explanatory Report to the Cybercrime Convention, part I(5).

[7] Explanatory Report to the Cybercrime Convention, part I(6).

[8] Supra note 29, chapter II, § 2.

[9] Supra note 29, chapter II, § 1.

[10] Supra note 29, chapter II, §1, title 5.

[11] Supra note 29, art. 25.

[12] ENISA, https://www.enisa.europa.eu/ (last visited May 6, 2021).