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War Crimes

By:- Disha Mathur

 Worldwide, civilians are being attacked and killed in armed conflict, when do such attacks will be considering illegal?

The concept of war violations was created especially at the conclusion of the 19th century and starting of the 20th century, when universal helpful law, moreover known as the law of outfitted struggle, was codified. The Hague Community war wrongdoings can be found in both universal compassionate law and universal criminal law arrangements, as well as in universal standard law. Particles were received in 1899 and 1907.

A few other related arrangements have been embraced since at that point. war violations must continuously take put within the setting of an outfitted struggle, either universal or non-international. It advanced continually, especially since the conclusion of World War I. War wrongdoings in universal arm clashes are secured by article 8(2)(a) which endorses grave breaches of Geneva Traditions of 12th admirable 1949. War wrongdoings beneath the Worldwide Criminal statute are isolated into four categories: war wrongdoing created assist beneath the umbrella of the Nuremberg Trials based on the definition found within the London Constitution (1945). War wrongdoing could be a genuine breach of universal law committed against civilians. In spite of the fact that the concept of war wrongdoings has old roots, rules on war wrongdoings began to create at the conclusion of the 19th century. The ICTY was given locale over four categories of wrongdoing:

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(1) grave breaches of the Geneva traditions

(2) infringement of the laws or traditions of war

(3) genocide

(4) wrongdoings

Beneath Under  Article 147 of the Fourth Geneva Convention [1]characterizes war violations as “wilful slaughtering, torment or brutal treatment, counting … wilfully causing extraordinary enduring or genuine harm to body or wellbeing, illegal extradition or exchange or illegal control of an ensured individual … taking of prisoners and broad pulverization and apportionment of property, not advocated by military need and carried out unlawfully and wantonly”.

Famous Case:

Jean-Pierre Bemba was charged with the war wrongdoing of starting campaigns of mass assault committed against civilians within the Central African Republic. Within the Ntaganda case, the ICC found sexual wrongdoings committed by individuals of a Congolese outfitted gather against other individuals of the same bunch were war wrongdoings.

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the ICC records the diverse sorts of war wrongdoing which are secured by the Rome Statute, counting but not restricted to the war violations of:

  • Wilful slaughtering, torment, mutilation or obtuse treatment
  • Biological, restorative or logical tests which cause passing or genuinely imperil lives
  • Destruction and apportionment of property
  • A compelling benefit in antagonistic forces
  • Denying a reasonable trial
  • Sentencing or execution without due process
  • Unlawful extradition, exchange or confinement
  • Taking hostages
  • Attacking civilians or civilian objects
  • Attacking staff or objects included in a compassionate help or peacekeeping mission
  • Improper utilisation of a hail of détente or particular symbols of the Geneva Conventions.
  • The law of war wrongdoings comprises of the criminalization of the infringement of the law of equipped struggle (LOAC), [2]too known as worldwide helpful law. War wrongdoings have been happening in India since Britishers took over but the pitiful portion is that it proceeded indeed after independence.
  • Mass migration of Kashmiri Pandits (1990)- In 1990 all the Kashmiri Pandits were given a caution from the amplifiers of the mosques overnight to either change over to Islam or take off Kashmir. All the possessions of Kashmiri Pandits were focused on such as shops, mandirs, etc. Individuals were slaughtered in expansive numbers. Individuals were constrained to take off their homes and their business. Those individuals are still living in destitute conditions. Till date, there’s no remuneration and no equity has been given to the casualties but revocation of Article 370 of the Structure of India.
  • Bengaluru riots (2020)- Horde of thousands of individuals assaulted at the houses of Hindus counting the house of a nearby MLA since his relative shared a blurb of Mohammad on social media.

    Laws related to War Crime in India:

  • Section 120A and 120B of IPC,1860 [3]says that when two or more individuals commit a scheme to do an illicit act.
  • Section 300 of IPC, 1860 [4]characterizes kill and section-302 have the arrangement of detainment for life or passing sentence.
  • Section 295 IPC, 1860 [5]punishes any individual who devastates, harms or difiles any devout put with the purposeful of insulting the religion.
  • Section 436 IPC, 1860 [6]states that any individual who tries to devastate or crushes the property such as house or devout put might be rebuffed with detainment for life.

War violations are not as it was related to violations committed amid war but indeed amid peacetime.  War violations are considered to be among the foremost genuine universal wrongdoings. The meaning of war violations was clarified within the four 1949 Geneva Traditions. Allegations of war violations within the 2006 Lebanon War refer to claims of different bunches and people, counting Absolution Worldwide, Human Rights Observe, and Joined together Countries authorities, who denounced both Hezbollah and Israel of abusing worldwide compassionate law amid the 2006 Lebanon War and cautioned of conceivable war violations. These affirmations included deliberateness assaults on civilian populaces or frameworks, unbalanced or unpredictable assaults in thickly populated private districts.

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Some of the Facts related to War Crime:

  1. According to various media reports, between 1,000 and 1,200 Lebanese citizens were reported dead; there were between 1,500 and 2,500 people wounded and over 1,000,000 were temporarily displaced.
  2. 300,000–500,000 were displaced because of Hezbollah firing tens of thousands of rockets at major cities in Israel.
  3. Even, the conflict in Darfur has been variously characterised as genocide.
  4. In September 2004, the world Health Organisation estimated there had been 50,000 deaths in Darfur since the beginning of the conflict, an 18-month period, mostly due to starvation
  5. In September 2004, the world health Organisation estimated there had been 50,000 deaths in Darfur since the beginning of the conflict, an 18-month period, mostly due to starvation.

The Sri Lankan Civil War

There are charges that war wrongdoing was committed by the Sri Lankan military and the revolt Freedom Tigers of Tamil Eelam amid the Sri Lankan Gracious War, especially amid the ultimate months of the strife in 2009. The affirmed war violations incorporate assaults on civilians and civilian buildings by both sides; executions of combatants and detainees by the government of Sri Lanka; implemented vanishings by the Sri Lankan military and paramilitary bunches supported by them; intense deficiencies of nourishment, medication, and clean water for civilians caught within the war zone; and child enlistment by the Tamil Tigers. The Sri Lankan Government has denied that its powers committed any war wrongdoings and has unequivocally restricted any universal investigation.

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Genocide:

Genocide is considered one of the foremost serious violations against humankind. It implies the consider endeavour to crush a national, ethnic, racial or devout bunch. Genocide may be a crime under worldwide law even if it isn’t wrongdoing within the nation where it takes put, and actuation to commit genocide is additionally wrongdoing.

The International Criminal Court (ICC):

The International Criminal Court (ICC) examines and tries people charged with the foremost genuine violations inside the setting of universal criminal law, counting war wrongdoings.

Conclusion

The repulsions of war were a portion of the nature of war, and recorded cases of war violations go back to Greek and Roman times. Before the twentieth-century armed forces regularly carried on brutally to foe officers and non-combatants alike – and whether there was any discipline for this depended on who inevitably won the war. Individuals are as a rule as it was attempted for war violations in the event that their nation loses the war – a triumphant country once in a while tries it possess individuals for war violations – with the result that war wrongdoings trials can seem like exact retribution trials, and be seen as acts of treachery themselves.

[1] Article 147 of the Fourth Geneva Tradition/ https://www.aljazeera.com/news/2019/10/23/explainer-what-is-a-war-crime

[2] law of equipped struggle (LOAC)/ https://www.genevacall.org/wp-content/uploads/dlm_uploads/2013/11/The-Law-of-Armed-Conflict.pdf

[3] Section 120A and 120B of IPC,1860

[4]  Section 300 of IPC, 1860

[5]  Section 295 IPC, 1860

[6] Section 436 IPC, 1860

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Artificial Intelligence and the Patent Regime

The World Intellectual Property Organisation (WIPO) defines intellectual property (IP) as a creation of the mind. Patent, is a type of IP, provides an incentive to individuals to invent and innovate. The patent holder/owner is given exclusive right to make, use, sell and export an invention for a specific period of time.

With the advent of technology, and artificial technology (referred to as AI hereafter) per se, the world has seen a substantial increase in the number of inventions and technologies, created with the help of AI, owing to its potential to increase productivity and efficiency, as compared to its human counterpart. This is apparent from the fact that between 2010 and 2016, there was a fivefold increase in the number of patent applications relating to AI techniques as compared to scientific publications by tech giants like IBM, Microsoft, Hitachi, Panasonic, Samsung, Siemens etc.[1]

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The interplay between AI and patent law has two implications, the first one relates to the patentability of AI itself, and the second one relates to the patentability of inventions created by the use of AI.

The issue of patentability of Artificial Intelligence

Generally, patentability of any invention is subject to certain conditions, which include novelty, industrial application and patentable subject matter. Certain jurisdictions completely prohibit patenting computer programme or algorithms[2] because they come under the exclusive domain of copyright protection[3]. However, in other jurisdictions, software and computer programmes are patentable, but only if they fulfil specific conditions. For example, in China, software invention needs to fulfil the technicality requirement[4]. Similarly, in the United States of America, traditionally patent protection was not provided to software as they were considered abstract ideas, which was outside the purview of USA’s patentable subject matter under the Patent Act, 1977. However, this bar against patenting software was removed by the Court in Alice v. CLS Bank[5] which held that abstract idea implemented on a generic computer may not be patented, but, if the software in question improves “computer functionality” (i.e. improves computing speeds or reduces the number of computing resources required), or performs the computing tasks in an unconventional way, then it may be patentable.

Therefore, it can be seen that the issue of patentability of AI per se differs from jurisdiction to jurisdiction, wherein few nations are more willing to provide patent protection to certain types of software, while others continue to bring it under the exclusive domain of copyright protection.

The issue of patentability of inventions created by artificial intelligence

Artificial intelligence, in the past decades, has played a major role in assisting humans by performing certain specific tasks, assigned to them, by means of algorithms set by humans. This process also inculcates the use of AI in creating innovations and inventions. However, the way in which AI aids in the creation of such invention, differs. Broadly, there are three ways in which AI can play a role in creating inventions. At one end, AI could simply act as a tool in assisting a human inventor without contributing to the conception of an invention. On the opposite side of the spectrum, as AI is not bound by the limits drawn to it, it could autonomously generate outputs that would be patentable inventions, if created by a human. Alternatively, AI could also fall in between these two extreme ends, for example, it could be used to generate several possible solutions under the guidance of humans who define the problems and select successful solutions.

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The legal regime governing the patent system in different jurisdictions highlight that there is no bar to granting a patent for an invention created or generated by an AI. However, such invention would nevertheless have to satisfy the statutory requirements for being eligible for patentability i.e. novelty, industrial application and patentable subject matter. However, the issue arises at the time of filing a patent application.

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Before understanding the issue, it is important to understand the concept of inventorship and ownership. Inventorship is determined by “conception, or the formation in the mind of the inventor of a definite and permanent idea of the complete and operative invention.”[6] Ownership, on the other hand, lies with someone who exploits the commercial benefits arising out of such invention. Further, patent ownership is generally tied to inventorship, unless another entity has a superior right, such as through employment or contract. Therefore, since the invention is a creation of the mind, and encompasses certain rights and liabilities, all the jurisdictions around the world unanimously agree to the fact that an inventor can only be a natural person/s and not even an artificial person. Further, with respect to ownership, it is considered that both a natural person and an artificial person, like a company, can have ownership rights over the invention.

Taking into account the developments in the field of AI which now enable it to autonomously generate new inventions, serious concerns can be raised about whether AI can be termed as an “inventor”. Recently, both Google and Facebook have seen their respective Al systems develop new languages to perform the assigned tasks, eschewing known human languages in favour of a more efficient one.

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Let us consider the situation where an invention is generated autonomously by an AI (the one side of the spectrum). If such AI is considered the inventor, then by virtue of being an inventor and not being bound by a formal contract of employment, it also becomes the owner of such invention and possesses the rights to sell its invention to other natural persons/companies for profits. However, does AI has the capacity to negotiate terms for commercial purposes and provide consent for such transactions. It should also be borne in mind that the entire premise of the patent is based on the very idea of commercial exploitation of invention for a limited period of time. This provides an incentive for innovation and inventions. Therefore, if the idea of commercial exploitation is subtracted from patent, what remains is charity, and charity does not drive investments into further inventions by the use of AI. This is the very reason why the courts in different jurisdictions are reluctant in interpreting “inventor” as to include AI[7]. Such a step would create a lacuna with respect to firstly, the practical implications of such step, secondly, the idea of incentive under the patent regime and lastly, the issue of attributing rights to AI and liability, in case of any dispute. This situation is beautifully highlighted by the recent case[8] wherein Stephen Thaler applied to the patent offices of the United Kingdom, Europe and the U.S.A. for patentability of an invention invented by the AI machine “DABUS”. Mr. Thaler mentioned “DABUS” in place of the name of the inventor and his name in place of the name of the owner. The patent offices of these jurisdictions rejected this application on the ground that an AI cannot be an inventor as the statutory requirements mandate inventor to be a natural person, and that AI can neither be employed (as Mr Thaler mentioned himself as owner stating that DABUS is his property), nor hold intellectual property rights. Therefore, the situation with respect to the patentability of inventions created solely by AI is clear, i.e. AI cannot be an inventor under the law.

When we consider the situation wherein AI acts just as a tool or plays a more active role in the process of innovation and invention, certain scholars believe that AI could be considered as a co-inventor. However, mentioning the name of an AI as an inventor in the patent application would also be futile as the courts have come to the conclusion that only a natural person can be an inventor.

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However, having said that AI cannot be considered as an inventor, it does not imply that the creation of AI cannot be patented. To address this issue, one of the theories propose that the owner of the AI which created an invention should be considered as the inventor of the inventions created by AI which it owns. However, such patentability would still be subject to the statutory requirements of different jurisdictions. This theory implies that AI is just a mere tool or machine which aids humans to perform specific functions. Since the actions of the AI are prompted by humans, such humans should be considered the real “mind” behind any innovation created by such AI, while performing its functions. This theory seems to work perfectly well as it solves the issue of the inventor being a natural person, the issue of attributing liability, and the issue of negotiating for commercial purposes. This would also imply an increase in investment in AI for creating more of such inventions, in which the owner of such AI is considered the inventor of such invention.

[1] Pankaj Soni, How Is the Patent World Responding to the AI Revolution, 281 MANAGING INTELL. PROP. 48 (2019).

[2] Like Indian Patent Act, 1970, s. 3(k).

[3] Trade related aspects of Intellectual Property Rights, Art. 10 [Source or object code, shall be protected as literary works under the Berne Convention (1971)].

[4] PATSNAP, https://www.patsnap.com/resources/blog/which-countries-allow-software-patents/ (last visited Jan. 29, 2021).

[5] Alice v. CLS Bank Int’l, 573 U.S. 208, 225-26 (2014) [Holding that “the abstract idea implemented on a generic computer” may not be patented]

[6] Townsend v. Smith, 36 F.2d 292, 295; Hybritech Inc. v. Monoclonal antibodies inc., 802 F. 2d 1367, 1376.

[7] New Idea Farm. Equip Corp. v. Sperry Corp., 916 F.2d 1561 (Fed. Cir. 1990) [The court stated that only people conceive ideas and not machines].

[8] Stephen L Thaler v. The Comptroller-General of Patents, Design and Trade Marks, [2020] EWHC 2412 (Pat).

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Role of Private Equity in the Construction Industry

By: Divya Tandon

What is Private Equity Investment?

Private Equity is one of the methods of financing an entity wherein capital is invested by private set of investors into a business in return for equity in the company wherein the capital is invested.

Private Equity investors are generally leveraged buyout funds, growth equity funds, venture capital funds, real estate investment funds, special debt funds or individuals having high net worth etc.

Private Equity Investors provide funding to the companies they invest in which help in meeting the capital requirements of the companies for funding their projects, pay off existing debts, solidifying the balance sheet, launching new projects etc.

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Due to huge size of investment, private equity investors often get involved in the functioning of the company and have a significant control and decision making rights in the company they invest in. The Private equity investors uses their enormous experience and skills to manage and improve the operations and revenue of the investee company over a period of time. The intent of the private equity investors is to improve the worth of the company so that they can later sell their stake for more than it was when they bought it thereby making profit.

Importance of Private Equity in the Construction/Real estate industry

The construction companies/firms require huge funds for their projects. Most companies/firms are not self-sufficient to fund their projects on their own. Hence, they look for alternative investment options to fund their projects. The construction companies can approach the banks for availing loans, look for joint venture partners, find suitable individual investors willing to invest in the form of equity or debt or private equity firms willing to invest in the company.  Since, huge funds are required by construction companies, most of the times the companies adopts more than one of the investment options to fund their projects.

Earlier, private equity investors used to avoid investment in construction industry due to certain inherent risks.  However, in recent years investment by Private Equity investors has gained momentum. The enactment of Real Estate (Regulation and Development) Act, 2016 (“RERA Act”) which has come into force with effect from May, 2017 has also made developers more accountable as their acts are now regulated by the RERA Authority. The RERA Act is more stringent as compared to previous legislation which has been brought to eradicate the problems that were inherent in the real estate sector. The RERA Act ensures transparency with respect to real estate transactions. Heavy penalties are imposed on the developers for violation of the provisions of the RERA Act or the terms and conditions of the agreement executed with the customers. Hence, RERA has brought in positive transformation in the real estate sector and boosted the confidence of private equity investors to invest in this sector.

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Besides the enactment of RERA Act, various other government policies and schemes have led to surge in investor interest in the real estate sector including foreign investors. Some of the policies of the government which has boosted private equity investment in construction industry are easing of FDI regulations, Housing for All, Affordable Rental Housing Complex Scheme, Credit Linked Subsidy Scheme (CLSS) to name a few.

Private Equity firms often fund real estate companies and provide financial support in development of real estate projects. Private equity investment provides the required liquidity to the company for its projects and provide support in launching new projects or to complete the pending projects. After enactment of RERA, the developers prefer completing their projects as per the agreed timelines to avoid payment of interest on the amounts paid by the customers. But due to liquidity crunch, sometimes the developers struggle with the available capital to complete the ongoing projects and provide possession to the customers. In such a scenario, the private equity investors come to the aid of the construction companies to provide last stage funding. Thus, the demand for funds in the last stages of completion of projects have risen. The last stage funding is also favorable for the private equity investors as it is comparatively less risky as during the last stages of construction generally necessary approvals are in place and construction is on the verge of completion. However, the private equity investors should ensure proper due diligence to understand the reason for the project being stalled. If the project is stalled only due to financial crunch, the investment by the private equity investors can help in reviving and completing the project and provide benefit to the investors by maximizing their value. On the other hand if the project where the private equity investor is considering to invest is stalled due to some third party dispute or pending litigations then the funding by private equity investors may not solve the problem and the project may not be completed as per the estimated timelines. This may result in the investment of private equity investors getting stuck.

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“Post the liquidity crisis in NBFCs in Q4 2018, private equity players including the domestic ones have become increasingly active once again and are expected to bridge the funding gap”[1]

In recent years, private equity investors are funding some major projects. The investment by private equity investors is not only in residential projects, but also in commercial and retail projects.  Due to the private equity investment, some of the stalled projects have been able to see the light of the day and have been completed, providing much needed relief to the customers who had invested in such projects.

Depending on the size of investment, the private equity investors get involved in the decision making process. The level of influence depends on the stake invested. They provide their inputs through out the development process and act as strategic partners.

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Impact of Covid-19 on the private equity investment in the construction industry

Due to the outbreak of the global pandemic Novel Corona Virus – COVID-19 in March, 2020, the current financial markets, trade, commerce and thereby business continuity is facing an unprecedented situation due to lockdown imposed by the central and state governments from time to time to curtail the spread of the deadly virus. This pandemic has paralyzed and destroyed the very economic fabric of the entire world including India.  Both the Central Government as well as State Governments had placed severe restrictions and implemented various remedial measures in an all-out effort to halt the spread of the virus.

The impact of the Covid-19 is thus a calamity and the adverse consequences on the Real Estate Industry is serious and has impacted the business severely. As a fall out of the above, there is total disruption in the supply–chain of materials, shutdown of construction activities due to huge shortage of construction materials in the market on supply–chain issues due to import restrictions, global manufacturing, shutdown of materials, heavy escalation in prices of materials etc. The site labourers had returned back to their native homes/villages due to the fear of contracting the virus due to which construction sites had either substantially slowed down or had come to a grinding halt. Since the real estate as an Industry being the most labour intensive, being extremely reliant on hundreds of materials coming from everywhere in projects and reliance on stable financial inflows into the projects; all these either being slowed / unavailable / stalled in most projects, severely affected current ongoing projects of the most real estate developers. The sale of residential/commercial premises had also been affected due to liquidity crunch in the market.

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It is also learnt that across the real estate industry, almost 60% – 65% of flat purchasers are defaulting in paying their due instalments to the companies towards the flats booked by them thereby further adversely affecting the business of the construction firms. The developers however on the other hand are without any respite/remedy in terms of payment of instalments towards huge loans taken from banks as well as payment of taxes and premiums to the various departments of the Government. Under these facts and circumstances, where on the one hand the payments are not being made by customers/purchasers, the construction work being affected and standstill due to the supply chain being disrupted and the workers unable to come to work, whereas the developers having to make payments towards service of finance loans, taxes, premiums etc. entire real industry is under the grave stress.

The outbreak of the Covid-19 and the forced lockdown (by the competent Government/Authorities) pursuant thereto, was a sudden setback to real estate sector which was already going through a rough patch due to low demand. Thus the construction industry is facing challenging times due to the drastic impact of the pandemic. The real estate industry is facing financial crunch to launch new projects and also to finish ongoing projects. Though, the restrictions have been relaxed by the governments, the impact of the Covid-19 and lockdown will be felt for months to come. Many construction companies are on the verge of bankruptcy. In such a scenario, private equity investors can come to the rescue of the severely hit real estate entities/firms.

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In recent times many private equity investors are in negotiation talks with construction companies to provide much-needed funding for their projects.

Recent trends

“Indian real estate attracted U$ 5 billion institutional investments in 2020, equivalent to 93% of transactions recorded in the previous year. Investments from private equity (PE) players and VC funds reached US$ 4.06 billion in 2020. The real estate segment attracted private equity investments worth Rs. 23,946 crore (US$ 3,241 million) across 19 deals in Q4 FY21. Investments in the sector grew 16x compared with Rs. 1,470 crore (US$ 199 million) in Q4 FY20. In value terms, these investments were 80% of that in 2020 and 48% of 2019, according to a report by Knight Frank”[2]

As per the reports from the property consultant, Savills India “Private equity investment inflows into the Indian real estate sector stood at $2.7 billion during the first half of 2021 as investors’ confidence remained intact despite the pandemic-induced slowdown. This inflow is equivalent to 41 per cent of the investment that the sector saw in the entire year of 2020. However, in the second quarter of 2021, Indian real estate market saw an investment of $865 million, a 54 per cent decline from the previous quarter.”[3]

As per Colliers’ report Investments Turbocharged with Focus on Alternate Assets Classes “Despite COVID-19, the total expected private equity inflows in the Indian real estate sector is expected to touch $5 billion in 2021, a 4.1 percent increase from 2020” [4]

As per ICRA estimates, Indian firms are expected to raise more than Rs. 3.5 trillion (US$ 48 billion) through infrastructure and real estate investment trusts in 2022, as compared with raised funds worth US$ 29 billion to date.[5]

According to the data released by Department for Promotion of Industry and Internal Trade Policy (DPIIT), construction is the third-largest sector in terms of FDI inflow. FDI in the sector (including construction development & activities) stood at US$ 50.8 billion between April 2000 and March 2021.[6]

Thus it can be seen from the above that the private equity investors both domestic and foreign have gained confidence in the Indian construction industry and have joined hands with some of the major construction companies to boost the growth of the sector.

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[1] As per the report of Savills on Private Equity in Indian Real estate

[2] https://www.ibef.org/industry/real-estate-india.aspx

[3] https://economictimes.indiatimes.com/news/india/indian-realty-attracts-2-7-billion-private-equity-investments-in-january-june-report/articleshow/84339543.cms?from=mdr#:~:text=Private%20equity%20investment%20inflows%20into,from%20property%20consultant%20Savills%20India.

[4] https://www.moneycontrol.com/news/business/real-estate/no-covid-19-impact-private-equity-inflows-into-indian-real-estate-sector-to-touch-5-billion-in-2021-7195641.html

[5] https://www.ibef.org/industry/real-estate-india.aspx

[6] https://www.ibef.org/industry/real-estate-india.aspx

 

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Analysis of Data Protection and Privacy Laws in India and U.K.

By:- Chaitanya Anil Yadav

  1. Data Protection and Privacy Law

According to Yves Poullet, more than 1.5 billion people use the internet and email nowadays, owing to the fast expansion of information technology and the population of internet users. Information technology will be increasingly utilised to acquire personal information, having both positive and negative effects for individuals (Dinev and Hart, 2006). The internet has provided us with several benefits while also putting our privacy in danger. On the internet, our information is disseminated widely. When you conduct online shopping, for example, you may be concerned about whether they retain your personal information and credit card data for any other reason or whether giving the information is secure. Are you perplexed as to why you are being bombarded with spam? Have you heard on the news that a bank’s network was hacked, and credit card and customer information was stolen? When we go online, there are possible privacy dangers and hazards. We need to be aware of these threats and risks, and we need to improve our privacy self-protection knowledge. Data security has always been a priority. It’s why individuals secure their file cabinets with locks and hire safe deposit boxes at their institutions. Data privacy is becoming increasingly important as more of our data is digital and we share more information online. A single corporation may have the personal information of millions of clients—information that must be kept hidden for consumers’ identities to remain safe and secure, and the company’s reputation to remain unblemished. However, data security isn’t simply a commercial problem. When it comes to data privacy, you, as an individual, have a lot on the line.

  1. History of Data Protection and Privacy Law.

Data privacy laws have existed for far longer than you may recall. Find out how data privacy regulations have evolved in the contemporary era as the GDPR approaches implementation. The General Data Protection Regulation (GDPR) will become fully operational. It is by no means the first data privacy law, and while it is the most comprehensive piece of regulations on the subject to date, it is unlikely to be the last. Let’s take a look back at the many current data privacy regulations that have been established over the years as the GDPR gets closer. The First Modern Data Privacy Laws were enacted in the 1970s. In response to worries about computer breakthroughs and privacy in the processing of personal data, the first contemporary data privacy regulation was enacted in Hesse, Germany. The Data Act, enacted in 1973, was the first national privacy law, criminalising data theft and granting data subjects access to their information.

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In Germany, the right to informational self-determination was established in 1983.

The German Federal Constitutional Court concluded in a landmark decision concerning the intrusive nature of a national census survey that people had a basic human right to self-determination over their data. Individuals should be safeguarded from the unrestricted acquisition, storage, use, and disclosure of their data, according to the judgement. In 1995 – The EU Data Protection Directive is enacted. The European Union enacted the Data Protection Directive, which imposed minimum standards of personal data protection on member states and protected individuals’ rights regarding the movement of personal data between EU member states as computer technology advanced and the free flow of information became more widespread. Individuals have access rights, as well as access to supervisory agencies, and data may be moved outside of the EU as long as “an acceptable degree of protection” was provided. However, each EU member state executed the legislation differently, resulting in some nations having weaker rules and supervision.

The Safe Harbor Accord was signed in the year 2000. This was a collection of principles intended to reconcile the disparities in data privacy regulations between the US and the EU to improve information flow between the two areas. They were eventually declared unlawful by the European Court of Justice in 2015 because US intelligence services had unlimited access to EU persons’ data under US law. The EU-US Privacy Shield was implemented in 2016 to replace Safe Harbor, but its future is uncertain.2016 is the year of the General Data Protection Regulation (GDPR).

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Organizations all around the globe have been granted a two-year head start to upgrade security measures and processes in readiness for the most comprehensive set of data protection regulations yet. The legislation includes a right to be forgotten for data subjects, affirmative permission, thorough and timely data breach notifications, simple language for terms of service agreements, and sanctions of up to 4% of an organization’s total worldwide annual turnover if found in violation.

  1. Data Protection and Privacy Law in India.

After more than two years of heated discussion, the Indian government finally tabled the Personal Data Protection Bill in Parliament on December 11, 2019. Rather than pressing for speedy passage of this highly important law, India’s information technology minister, Ravi Shankar Prasad, sent it to a joint parliamentary committee for review. After the committee issues its report on the law, it will be considered in the Indian Parliament in 2020, with the ruling coalition certain to win a large majority in both chambers. As India attempts to establish a comprehensive data governance framework, this law has far-reaching consequences for practically every firm trying to do business in India. India has a unique capacity to exert pressure over multinational digital firms and impact global policy due to its population size, gross domestic product, and the flood of new internet users.

During the proceedings in the K.S. Puttaswamy vs. Union of India (2017) “right to privacy” case, the narrative around data protection in India reached a peak. A nine-judge bench of the Supreme Court of India affirmed the right to privacy as a fundamental right in a landmark decision. The Indian government formed an expert group to develop India’s data protection policy throughout the case. The committee presented a draught Personal Data Protection Bill and an accompanying report, titled “A Free and Fair Digital Economy: Protecting Privacy, Empowering Indians,” after a public consultation on a white paper. Many of the consent-related clauses of India’s data protection law seem eerily similar to the General Data Protection Regulation of the European Union (GDPR). To acquire personal data, companies defined as data fiduciaries must get agreement from the persons whose data is in concern, according to the new Indian bill. Data fiduciaries are defined as any business that determines the “purpose and methods of processing personal data,” a broad description that may include everything from ride-hailing applications to social media platforms to data brokers that purchase and sell consumer data.

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These safeguards show that the Indian government is concerned with both protecting the rights of Indian data subjects and reducing the massive power disparity that now exists between major technology companies and ordinary Indian people when it comes to data collecting. However, it remains to be seen how that connection will play out between individuals and the government, not only between companies and individuals. For example, when government organs judge data collection and usage relevant to state operations, the various loosely stated exclusions on data legislation might permit types of monitoring. To allow data to be copied into a country, the destination country must provide enough privacy protections for the data and not prevent Indian law enforcement from accessing it. India isn’t unfamiliar with the need for localised data storage. Rather, they would be used to enhance existing policies. The Reserve Bank of India’s (India’s central bank) mandate for local storage of payment data is the most significant of the existing safeguards. Attempts have been made by major technology companies such as WhatsApp Pay, Google Pay, Mastercard, and other payment providers to comply with the new Reserve Bank rule. Finally, the government made care to include Section 91, which states that the government maintains the right to interpret any rules for the benefit of India’s digital economy as long as it does not entail the use of personally identifiable information. The government can also order data collectors to provide up anonymized personal information or other “non-personal data” for “evidence-based policy-making,” according to Section 91(2). There hasn’t been much clarification on what it would entail.

  • Information Technology Act, 2000: It provides for safeguards against certain breaches about data from computer systems. It contains provisions to prevent the unauthorized use of computers, computer systems and data stored therein.
  • Personal Data Protection Bill 2019: The Supreme Court maintained the right to privacy as a fundamental right in the landmark decision of K.S. Puttaswamy v. Union of India 2017 after which the Union government had appointed Justice B.N. Srikrishna Committee for proposing skeletal legislation in the discipline of data protection. The Committee came up with its report and draft legislation in the form of the Personal Data Protection Bill, 2018. In 2019, Parliament again revised the Bill and much deviation from the 2018 Bill was evident. The new Bill was named as Personal Data Protection Bill, 2019. The purpose of this Bill is to provide for the protection of privacy of individuals relating to their Data and to establish a Data Protection Authority of India for the said purposes and the matters concerning the personal data of an individual.

Data Protection and Privacy Law in the U.K.

The Data Protection Bill was enacted in May of 2018, and before that, the United Kingdom regulated the Data Protection Act or DPA 1998, which was enacted with the adoption of the Data Protection Directive into national law on March 1, 2000. The Privacy and Electronic Communications Regulations (PECR) 2003 play a role in company operations, and modifications to the regulation of direct marketing have been enacted. According to assignment help UK experts, it includes the processing of location and traffic data, as well as the use of cookies and other similar technologies. The European Commission has suggested a draught Regulation on Privacy and Electronic Communications to replace the existing ePrivacy Directive (Raul, 2018). The regulation is supplemented by the ePrivacy Regulation, which has direct implications for all Member States, including the UK. Its goal is to offer marketing guidelines based on cookies from websites to industry-specific regulations. The ePrivacy rules need to be updated, and these are the modifications that must be made. It necessitates a clear and affirmative action to grant permission to cookies. It tries to encourage the burden of shifting and seeks agreement from website browsers to utilise cookies.

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The Act is divided into seven sections. Section 1 explains them in detail. This Act regulates the handling of personal information. The GDPR governs the majority of personal data processing. Part 2 adds to the GDPR (see Chapter 2) by imposing a substantially comparable rule on some forms of processing that are not covered by the GDPR (see Chapter 3). Part 3 implements the Law Enforcement Directive and establishes provisions for the processing of personal data by competent bodies for law enforcement purposes. Part 4 deals with the intelligence services’ handling of personal information. Part 5 specifies the role of the Information Commissioner. Part 6 outlines the procedures for enforcing data protection regulations. Part 7 contains supplemental provisions, including information regarding how this Act applies to the Crown and Parliament.

The Act creates new offences such as intentionally or carelessly collecting or revealing personal data without the data controller’s consent, procuring such disclosure, or keeping data obtained without consent. It would also be illegal to sell or offer to sell personal data that had been intentionally or recklessly collected or exposed. In essence, the Act implements the EU Legislation Enforcement Directive, it applies those portions of the GDPR that “must be decided by Member State law,” and it provides a framework comparable to the GDPR for the processing of personal data that is not covered by the GDPR. This includes the processing of personal data stored in unstructured form by public authorities, as well as the processing of intelligence services, immigration services, and personal data held in unstructured form by public authorities.

The GDPR will be integrated directly into domestic law once the UK quits the European Union under section 3 of the European Union (Withdrawal) Act 2018.

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The Information Commissioner’s Office’s enforcement of the Act is aided by the Data Protection (Charges and Information) Regulations 2018, which impose a data protection fee on UK data controllers. Some companies and non-profits’ internal core objectives (staff or members, marketing and accounting), home affairs, some public reasons, and non-automated processes were all exempted from the fee. The registration enforcement system was shifted from criminal to civil monetary penalties under the 2018 Act.

The Data Protection Act of 2018 is an update to the Data Protection Act of 1998, emphasising the need for companies to be more responsible with information and enhancing confidentiality. The latter amendment also operates in combination with the GDPR, which was not the case with the Data Protection Act of 1998. The following are the major changes from the Data Protection Act (1998) to the Data Protection Act (2018) The Data Protection Act’s right to erasure exclusions are being regulated in line with the GDPR. The enforced Regulations of May 25, 2018, were going to be applied to the Member States and would continue to be directly applicable in the United Kingdom. The Queen’s address in 2017 reiterated that the United Kingdom will remain an EU member state, and the Regulations will take force, with the Government intending to propose legislation to implement the Regulation. There is a bill that is expected to pass after the Brexit period. The law is about the requirements for implementing the proposed Data Protection Bill’s Regulation. The New Data Protection Bill draught was expected to be released in 2017, and the UK government would be reforming the data protection legislation based on the Regulations.

Conclusion

Data is a vital resource in the digital era that should not be left uncontrolled. In this environment, India’s time for a strong data protection regime has arrived. The Personal Data Protection Bill, 2019, has to be amended as soon as possible. It has to be rewritten to ensure that it emphasises user privacy while focusing on user rights. To enforce these rights, a privacy commission would need to be formed. The government would also have to protect people’s privacy while bolstering their access to information. Furthermore, technology advances achieved in the previous two to three years must be addressed, as they have the potential to flip the world upside down. It’s like wielding a two-edged blade. While it protects Indians’ personal data by giving them data primary righto grants the central government exemptions that are contrary to the principles of processing personal data.When necessary, the government can process even sensitive personal data without the data principals’ explicit agreement. So, while following the foreign legislation of the United Kingdom or the United States in its entirety would not be a viable solution, a comprehensive data protection law is the need of the hour in India. Distinct types of data should be divided into different categories, and different levels of security should be offered to different types of data. However, this should be incorporated in a single act. India’s strategic goal is likely to be in ensuring that it fulfils its constitutional obligation to its people, prioritising citizen rights and economic well-being over purely commercial or bureaucratic objectives. However, it is unclear if this goal is met, owing to concerns about exclusions in the wording of the Personal Data Protection Bill. It remains to be seen if the policymaking pendulum swings in the correct direction when the Joint Parliamentary Committee begins debates on the bill draught.

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Contracts in the Pharmaceutical Industry and the Clauses Covered Under it

By:  Mansi

  • What is the Pharmaceuticals Industry?

The Pharmaceutical Industry creates, delivers, and markets medications or drugs authorized for use as meds. Drug organizations are permitted to bargain in conventional or potentially brand meds and clinical gadgets. They are dependent upon an assortment of laws and guidelines concerning the patenting, testing, and guaranteeing security and viability, and advertising of medications.

A Contract for goods and products is a legitimately official arrangement between a buyer and a supplier for a particular timeframe. In the public area, the buyer is generally the public authority and the supplier might be a private area organization.

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Some health systems contract out traditions freedom, drug stockpiling obtainment, and transport. sometimes, a wellbeing framework might contract out drug administrations through retail or not-revenue drove drug stores. Rethinking administrations can, now and again, decrease costs and further develop viability. the choice whether to contract out or to offer types of assistance in the house should depend on the cautious examination of the impact on the whole store network, including costs, execution, the limit of the private area to give the labor and products being referred to, and the limit of the wellbeing framework to screen the agreement. Reevaluating is probably going to succeed when genuine rivalry happens, the wellbeing framework is prepared to direct the agreement, and adequate assets are accessible to pay the contractor.

  • Why Do Pharmaceutical Companies Use Contractors?

Drug organizations use worker-for-hire security programs for some reasons, mainly because their offices are frequently under development. Everything is changing constantly with new faces going back and forth, yet security should stay a steady and an activity’s main concern.

Workers for hire likewise become more capable at assessing occupations and better prepared to branch past the drug business into other intensely directed venture fields like petrochemical and atomic. The entirety of this delivers fat profits to pharma organizations as better-taught, more qualified, and more-security cognizant project workers/accomplices.

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Moreover, there are various types of contracts in the Pharmaceutical Industry. The same is being discussed below.

  • Types of Contract In The Pharmaceutical Industry-
  1. Quality Agreement-

Assembling quality arrangements are endorsed between parties associated with the agreement production of medications. They set up how each party would conform to CGMPs. Provider and merchant quality arrangements express the terms in regards to the nature of materials or administrations gave to an assembling office delivering the medication.

  1. Licensing Agreement-

Under an authorizing arrangement, the permitting firm grants an organization in the host nation to create as well as sell a medication. The licensee pays remuneration to the authorizing firm in return for its specialized mastery.

  1. Product Supply Agreements-

An item supply arrangement is endorsed between a provider and a purchaser who consents to supply and buy medication or other drug items. The agreement determines the agreements concurred by the gatherings and the outcomes of breaking the arrangement.

  1. R&D Agreements-

Pharma organizations sign communitarian R&D cooperating bargains whereby the contracting parties consent to team up on the innovative work and ensuing commercialization of a medication.

  1. Technology Contracts-

Pharma organizations participate in cooperative concurrences with CROs and other logical innovative suppliers like biochemical plants. They give the gear these organizations need in their labs to direct research or production of drugs.

  • The direction of clinical preliminaries is regularly liable to time pressure, with the factor of time playing a significant job in the global contest, especially in the period paving the way to the beginning of a clinical preliminary. To have the option to start a clinical preliminary as ahead of schedule as could be expected, it ought to be feasible to finish up the basic agreements between the gatherings in question rapidly and effectively, with far-reaching content. Accordingly, it would be valuable if rules, as model contract clauses giving instances of explicit legally binding arrangements that routinely repeat in agreements overseeing the lead of clinical preliminaries, were accessible to likely legally binding accomplices during their particular arrangements; this would result in an improvement on arrangements there.

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General Contract Clauses–

  1. PUBLICATIONS-

This particular clause is included in Pharmaceutical Contracts to protect the legitimate interests of the clients. In this clause, the respected firm, company, industry, etc. comply with all the procedures in respect of publications. The clause states affirmation about the client’s liability to acknowledge and accept the basic right of publications of the concerned documents, trials, etc.

There are some sub-clauses present in this ‘publication’ clause like Initial Publication, Review Before Publication, Standards, and Disclosure of Support. All these clauses are for the clarification of the opposite party. They include conditions and liabilities accordingly.

  1. CONFIDENTIAL INFORMATION-

This clause deals with the confidential information provided by the client, present in some collaterals, etc. the clause strictly forbids the person to disclose the provided information to any other third party. That information can only be disclosed after asking for the prior consent of the client. The clause also expresses that the concerned confidential information can only be accessed by those persons who need the information for the performance of the services that are being provided in the agreement of a particular Pharmaceutical Company.

The Confidentiality Clause never applies to the person or site who has the entitlement for the publishment of the confidential information provided to them.

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Certain exceptions (points that the person/site is required to prove to avoid confidentiality provision) are also mentioned in the Confidentiality Clause. Then comes the sub-clause of Disclosure which includes the conditions or requirements to be fulfilled before disclosure of the confidential information. Sub-clause of ‘continuing obligations’ states that the restrictions regarding confidential information continue to apply even after the expiration date of the agreement. This is followed by the sub-clause of ‘Destruction’ which expresses the facility of erasing all the confidential information upon the client’s request. Technical, as well as all hard copies of that information, come in its ambit.

The trial site continues to be bound by the confidentiality provisions even after the destruction of all the confidential information of the client/firm.

  1. TRADEMARK CLAUSES/USE OF NAME-

This clause specifies that at the time of the agreement, each party shall acknowledge and accept the trademark rights of the opposite party. Neither the conducting party have the permission to make use of the trademark that belongs to any other party. However, this can be done after taking permission/consent from the opposite parties. The names of the trademark that are a part of the object of the agreement and are within the scope of the regular names of the authors do not come under the provision of this clause.

  1. LIABILITY-

This clause is specific regarding the liability of negligence and intention and thus, makes the contracting/conducting parties responsible for that. Some contractual obligations, material in nature are also mentioned in this clause. It enables the proper functioning of the signed agreement. It is to be noted that the provisions of this clause are binding not only to the contracting parties but also to the representatives, agents, and servants of those parties. This clause is comprehensive. The provisions of this clause are subject to future situations/circumstances. Certain aspects like- loss of profit, the gain of loss, infringement to breach by a third party, turnover-loss, etc. the values specified in this clause depend on case-to-case as to which parties chose how much amount.

  1. AUDITS/INSPECTIONS-

This clause mentions the period until which the obligations outlined in this clause would remain in force and would be effective even after the expiration or termination of the present agreement. This clause includes obligations and liabilities regarding Monitoring and Audits, Inspections, Cooperation, and Clarification of Discrepancies. It includes the responsibilities regarding the preliminary site will give workers of the customer as well as its delegates, after plan concerning time, admittance to its structures, offices, all reports applicable to the clinical preliminary, and the individuals from the preliminary gathering as needed for checking the direct.

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It includes the acknowledgment of the parties to inspection by the supervising authorities/offices across the nation. It includes conditions like the parties have to cooperate with those supervising authorities and its officers or the clients, representatives, agents during the tenure of inspection or query regarding the performance.  Also, it is mentioned that all the discrepancies are mandatorily be disclosed to the clients or third parties.

  1. ARCHIVING-

This clause majorly works following the local statutory requirements. The parties are obliged to retain all the documents, agreements, etc. whether hard copies or electronic related to the subject agreement. It includes all the site files of investigators and files relating to the research work. The period till which those files and documents have to be retained is also mentioned in this particular clause.

It is also provided in the Archiving clause that the parties can destroy the documentation once the retainment period is over. The parties should educate the customer about any potential changes to the kind of filing utilized for the Documentation.

  1. EQUIPMENT/MATERIALS PROVIDED-

This clause deals with the provisions like, where the customer accommodates gear or materials for use by the preliminary site for the reasons for directing the legally binding clinical preliminary, or organizes arrangement by an outsider, these should be recorded in a different Annex. Such materials might incorporate, bury Alia, PC programming, techniques, appraisal scales, and different guides that are the property of the customer or an outsider or are authorized for use. Arrangement of the Equipment will be restricted to the length of the clinical preliminary and the Equipment should be returned expeditiously to the customer or the outsider after the finish of the clinical preliminary; the customer or the outsider named will guarantee that the Equipment is reclaimed.

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The parties acknowledge that the arrangement of the Equipment doesn’t comprise compensation or fractional compensation and that it will be utilized only for the lead of the legally binding clinical preliminary. The preliminary site will guarantee a lot that the gear gave will be utilized only to play out the administrations because of the customer regarding the clinical trial. taken back.

  1. TERMINATION/CANCELLATION-

This clause mentions the events happening which render the contract/agreement canceled. Some of the events are- Rejection by the ethics committee, Refusal by the competent Higher federal authority, Completion of trial, Early termination of the trial/ agreement.

This clause also deals with the procedure that shall be followed by the parties in case of the termination of the trial or the agreement. That procedure is regarding the payment of the conducting parties.

  • CONCLUSION-

Pharmaceutical industry consistency and guidelines are advancing and turning out to be more difficult with globalization. This unfavorably influences your organization’s contracts, which are the bedrock of all your business connections. Contracts assume a basic part in all exchanges — be it purchasing from providers, speeding up pharmaceutical preliminaries, managing medical care experts or Contract Research Organizations (CROs) for clinical examinations, and drawing in with discount and Pharmacy Benefit Managers on the sell-side.

Contracts are one of the best income sources, however, mismanaged contracts can wind up being your greatest liabilities. To handle the developing difficulties, pharma companies need technology that would smooth out there contracting cycle and accomplish functional effectiveness. Attributable to the rigid guidelines and resulting amplified contract chances, putting resources into cutting edge contract the board frameworks is not any more an extravagance yet a need.

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Blog Intellectual Property Law

Role of IP in the Media Industry

By: Ilakkiya Kamaraj

Introduction: 

“Is there anyone who hates entertainment?” The media has never stopped entertaining us. It plays an important role in our lives from fascinating us through films to feeding our brains with up to date information about the happenings in the world. From one corner of the world, we can know the happenings of another part of the world through media. That too in this internet world we can access each and every information or watch films through phones anywhere and everywhere. Media is such a wide area which plays an important role in our lives needs a sort of protection for the work of its people’s work. Such protection can be given to media by Intellectual property. Intellectual property protection is used in various fields. In this paper, we are going to see how IP’s role is important in protecting the works of media.

Intellectual property:

The ownership of any creation of the mind or ideas or designs by a person is known as Intellectual property. IP can be categorized into many types but the most widely used IP are patents, trademarks, copyrights and trade secrets.

  • A right granted to a person for his/ her invention is called a patent. It prevents usage of one’s invention by others illegally. The inventor can sell, use, distribute, create, import or export their invention for over 20 years once his/ her work is patented.

“A person has an entitlement to an invention if that person’s contribution, either solely or jointly with others, had a material effect on the final concept of the invention”.[1]

  • Protection of logos and brand names used on various goods and services is known as a trademark.
  • Copyright is used to protect creators artistic works such as music, films, paintings, technical drawings, computer programs etc.,
  • Any secrets related to a company’s business protected, to avoid its accessible by its competitors is referred to as trade secret.

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Intellectual property is very important for protecting one’s innovation. If IP is not in use there are high chances for many individuals and businesses to lose their rights to their innovation.

Media:

The storage and delivery of information or data through various modes like radio, television, mobile phones, magazines, newspapers, internet etc., are referred to as media. The information is disseminated as films, news, music, promotional messages etc., Since media consists of artistic work from one’s own knowledge, an individual must protect his/ her work through media. There is how IP plays a very important role in protecting the works of media.

IP’s role in media industry:

We all love movies! But to make a scene and combine it into a movie involves many various complicated works. From making movies to shaping every stage of the filmmaking process Intellectual property rights play a vital role.

  1. Copyright in media:

As copyright protects the artistic ideas of individuals it is considered as the lifeblood for media. Copyright guarantees the protection of creative minds without affecting the creation of new media and protects the creators work from the usage of others without their permission. The copyright of the original material is mandatory nowadays, as a lot of competition has emerged in the entertainment industry.

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Benefits:

  • A public record of the work is registered.
  • Provides with economic benefits such as broadcasting the work, making copies etc.,
  • Filing a lawsuit and taking legal action is enabled when copyright is registered. Legal evidence of one’s own can be obtained.

Passing the rights of one’s work is allowed and one can change the form of his/her work.[2]

  1. Trademark in the media industry:

Any symbol, design, word or phrase that differentiates the goods of one company from others is referred to as a trademark. In media, a trademark is used to protect a movie’s brand or merchandise in connection to it. In media trademark law protects every title of a movie, album, music, famous characters etc., For instance, Disney has its own logo, the same goes for Pixar, discovery and many other channels as its logo to stand out from the crowd in the market. Similarly, movie titles like star wars, harry potter can also be protected using the trademark.[3]

Benefits:

  • The exclusive right of the trade can be enjoyed by the owner.
  • There will be no infringement.
  • Big brand names act as a magnet and attract young minds.

Merchandising:

Character merchandising is one of the ways to generate income. In a case where the unauthorised sale of dolls resembling a famous pop singer without their permission injunction was granted for the tort of passing off by the Delhi High Court to the third party.[4]

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  • Patent in media industry:

Just like trademark and copyrights patent also plays an important role in media. Making the film is not an easy task. It needs funding and substantial efforts. It involves lighting, sound effects, editing, special effects etc., Patent is used to protect the innovation of a person which is considered as the eye of filmmaking. By patenting, third parties are excluded from using or selling another person’s product without permission.

Benefits:

  • Restricting the competition in regards to a particular invention.
  • Inventor’s monopoly is been safeguarded with patent registration.
  • The inventor has the right of royalty when he decides to license his product.
  • Patent registration helps in start-ups and small business entities.
  • The credibility of the company in the market increases through patent registration.
  • In media to begin an industry patent registration is necessary.

Laws protecting IP in the media industry:

Therefore copyright, patent and trademark act as a shield for the media industry. Recognition of the rights of the creators and protection against infringement of content are guaranteed through copyright. Whereas the key characters of a film, movie titles and other related elements are protected through trademark. Though there are IP rights for protection, violation of IP rights, trademark and copyright are being infringed as the media industry expands.

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India being a signatory of the TRIPS agreement and other International IP treaties helps in avoidance of misuse and protection of IP. There are certain laws in India in order to prevent such misuse in the media and entertainment industry. They are.,

  • The Copyright Act, 1957
  • The Trademark Act, 1999
  1. The Copyright act, 1957:
  • Section 14 of the Copyright Act, 1957 defines copyright as the right given over a work to do or to authorise to do that work.
  • If the own work of any individual is been infringed in India then the person who infringed would be punished under section 63 of the copyright act, 1957. If a suit is pending before the civil court then the criminal court cannot give a finding on the infringement of copyright.[5]
  • The Bombay High Court held that the act of the infringer will be preposterous if he attributed infringement without knowing that owner of the copyright has registered under section 44 of the Act.[6]

De minimis infringement:

The principle of “de minimis non-curat lex” that is “the law does not concern itself with trifles” applies to copyright. A court has the authority to apply the de minimus principle in a lawsuit if it is of trivial matter. For instance, the De minimus doctrine is used in music sampling where a music w is modified by sound engineers from a small portion of music work and incorporated in new musical work.[7]

In the case of the India Independent News v Yashraj Films Pvt Ltd[8]., the doctrine of De minimus was applied to decide copyright infringement where parts of popular songs were played in a singer’s interview who appeared on a television chat show. It was held that it was not actionable as the alleged infringement was deemed de minimus.

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  1. The Trademark Act, 1999:

Under the trademark act, the name of songs, music albums, movie titles and their famous characters are being protected.

Conditions:

There are few conditions for the protection of titles and symbols under the trademark act. They are;

  • There must be originality of titles and phrases. Titles should be unique; if not the general ones will not be protected under trademark.
  • Single film titles will not be trademarked. Series of films such as harry potter, Narnia and series like F.R.I.E.N.D.S, money heist etc., can be protected under trademark.

Social media and IP:

The Internet has grown so fast with the evolution of time. In the early days, there was only a television mode of media. And therefore the risk of infringement has been less. There are plenty of content creators on online platforms nowadays. For example youtube. Online platforms also follow strict policies such as copyright verification programs, copyright strikes etc.,

The Bombay High Court held in the case of the Marico Limited v Abhijeet Bhansali[9], that the suit constituted by the defendant cannot be taken into legal action has his video was just his opinion.

Rights of celebrities:

Celebrities’ images are used without their knowledge and have been misused. Both copyright and trademark act protect celebrity rights in India. In addition to these, the Universal Declaration of Human Rights also tries to protect celebrity rights.

Under copyright act sections 38 and 39 covers celebrity rights.

Section 38 of the copyright act- the performer’s right is provided to any performer concerning his performance for fifty years.

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Section 39 of the copyright act- a person will be held liable for infringement if he takes the recording of the performance of the performer without his consent.

Conclusion:

IP plays a major role in keeping the media industry running smoothly without any problem. Movies are protected through IP. Everything we experience, hear or see-through media is covered by IP. Intellectual property and media should go hand in hand. If IP is not there media would have been at high risk. Everything from television serials to Netflix series involves huge funds and labour of various people such as cameraman, director, producer, screenwriter, actors etc. Therefore protection of such work from infringement is mandatory. Such a role of protection can be given only by Intellectual property. Therefore intellectual property plays a very important and dominant role in the media industry.

[1] Row Weeder Pty Ltd. v. Nielsen, 39 IPR 400 (1997).

[3]CS Prachi Prajapati, Advantages Of Registering Trademark, LEGAL WIZ (Jul. 31, 2017, 11:15 AM), https://www.legalwiz.in/blog/advantages-of-registering-trademarks.

[4] DM entertainment v. Baby Gift House, MANU/DE/2043/2010.

[5] Cheran P Joseph v. K. Prabhakaran Nair, 1517 CriLJ  (1967).

[6] Dhiraj Dharamdas v. M/s Sonal Info Systems Pvt Ltd, 3 MhLJ 888 (2012).

[7] De Minimus Use, USLEGAL (Aug. 25, 2019, 09:30 AM), https://entertainmentlaw.uslegal.com/intellectual-property/copyright/de-minimis-use/.

[8]  53 PTC 586 (2013).

[9] 1094 COMIP 596 (2019).

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Analysis of Civil Procedural Laws in U.S.A. and U.A.E

By: Shirleen Kaur

ABSTRACT

Laws are generally divided into two major heads i.e., substantive law and the procedural law. Both the heads are considered together as one is purposeless without the other. The former contains the rules and regulations, characteristics of laws with bare acts of those laws. While the latter one gives an approach on how to implement substantive laws. Essentially, the judicial structure is divided into two kinds of case matters: civil and criminal. Hence, a study of Civil Procedure is basically a study of the procedures the substantive statues that are not criminal.

INTRODUCTION

United Arab Emirates (UAE) has arisen to be one of the main powerhouses in economically aspect in Middle East. With time has also recognized the need of modernizing its laws as the growth of commercial contracts continues to increase as well. Despite that the ambiguous global changing nature of the world cannot be brushed aside when it comes to emerging markets, Dubai’s economic and dynamic cultural growth. These factors cannot be strengthened if legal and regulatory framework has not been developed and continue to develop sufficiently to encourage substantial internalized local and international enterprise in Dubai. It is well established that there is immense analysis done while deciding willingness to set up international businesses. Legal and regulatory framework has a major role to play in it as most pf the decision is based on their suitability of country’s legal framework. American philosophers have a major part in making civil procedure to be especially substantial. The civil procedure rules are so important as it is correlated to larger American norms. This loyalty for procedural to be ideal in due process explains how USA law makers have faith in individualism promoting a requirement for legal framework to proclaim that every claimant will get individualized justice. Consequently, this even reflects what is the USA’s cultural view regarding civil disputes. They follow the approach that there is supposed to be a winner and losers whenever a dispute arises rather than having a negotiation resolution approach.

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UAE CIVIL LAW PROCEDURE

United Arab Emirates was affirmed as independent, united and a sovereign state comprising seven emirates. Relevantly, just like Indian legal system is based on Indian Constitution likewise, UAE legal system based on its the constitution. UAE legal system is a dual nature as it has local and federal courts together with a Supreme Court. “Civil Procedure Law” has been issued under Federal Law No. 11 of 1992 which is followed accordingly by the UAE courts to adjudicate all the civil matters.

  • Sources of civil laws in UAE

The main ideas and beliefs of the United Arab are taken from the Sharia law. Although, most laws entail a combination of European and Islamic notions of the civil law whose source is that the Egyptian legal code created within the 19th and 20th century. The adoption of civil law by variety of states within the area exhibits the French influence.

In Addition, having a specific legal legislation for all the agencies particularly of labour law, company law, and intellectual property, United Emirates has over the time recognized commercial and civil codes. This formation has facilitated some expansion in civil legal systems to be more structured and complete. Every new structure may affect someone in some way or the other as a consequence, it can be interpreted as inflexible sometimes. This rigidity has brought the same to some extent when it comes to establishing the job work linked to numerous countries within the geographic region. The UAE functions under a civil law system and acts are the first source of law.

The other thing that may differentiate the legal system of UAE from other countries would be that the Judgments of the higher courts don’t seem to be obligatory on the lower courts (although they could be a beneficial guide and often cited for backing of a position). Each case is set on its own advantaged and facts.

NATURE

All court proceedings in UAE courts follow Arabic language. If there are any non- Arabic documents that are to be filed in the Court, needs to be converted into Arabic by a professional translator certified by the Ministry of Justice.

Correspondingly, the system within the UAE is fundamentally investigative in nature. In each case, the judge would prefer investigating the facts (generally through an expert allocated by Court) and apply the law to detailing of the facts of the case in reaching their judgment. There has never been a discussion of introducing a jury trial. All proceedings in UAE civil cases are supported with the written pleadings of the parties and reinforced by all the documentary evidence admitted. In general, there is no oral hearing in civil cases. There is a common practice which is prevalent for both the federal and also the Dubai courts to refer the matters to court-appointed experts for appropriate conclusions of fact in order to help in variety of expertise areas.

Even though, the judgement is followed, but importantly the concept of cease-and-desist order isn’t practiced in UAE. However, if after a while evidence is further submitted, the court may grant extension of the time supported by the request of the parties concerned treated as the additional submissions made by parties.

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The temporary remedies that are provided in UAE, are orders such as prohibiting the defendant from leaving the UAE or an order with relevance of surrendering of the passport by the defendant. These interim reliefs may be sorted if the claimant believes that the defendant might leave the concerned jurisdiction.

After a judgement is given, the judgment holder will start execution proceedings, and once this process is initiated, the debtor of the judgment shall receive a notice and they shall be expected to pay the debt, and if it isn’t fulfilled within the prescribed time then further execution proceedings commences. Then there are chances that the court may order attachment and sale of the concerned debtor’s property and even attachment of shares, bonds, stocks etc. In exceptional rare cases, imprisonment may also be passed for stricter approach to condemn violations.

Unlike India, there is no provision mentioned in UAE law regarding mandatory and prohibitive injunctions.  The applying for an attachment order of debtors’ assets is the only method that resembles to an injunction given in Indian Courts.

  • In the matter of Commercial disputes in UAE, they are resolved through either Litigation or Arbitration. The UAE is signatory to the UN convention on for the interest related to foreign arbitral award. Apart from arbitration, concepts which comes under the umbrella of arbitration such as conciliation and mediation are not that developed which means that these methods are not practiced like that in India. Although ADR may be considered a useful method for
    resolving the commercial disputes, but the need has not been recognized under UAE laws as no statutory framework exists which enforces ADR at large scale as a most vital method for resolving commercial disputes[1].Bottom of Form

USA CIVIL PROCEDURE LAWS

Civil proceedings in the United States district courts are governed by the Federal Rules of Civil Procedure.  The substantial purpose is “to secure the just, speedy, and inexpensive determination of every action and proceeding.” [2]These rules were first adopted by order of the Supreme Court in 1937 and came into effect in 1938. The latest amendment of Civil Regulations was in 2020.

  • Sources of laws in USA: US Rules has composed the complex laws to specifically talk about how “it exists in different forms at every level of the government. To start with laws in US exist not only in the statutory form, but also the common laws that are formed through the judiciary.” [3]

Therefore, what distinguishes the sources of laws in USA in simple terms can be covered within the following.

  1. Constitution of USA and its Statutes
  2. Common laws
  3. Executive action
  4. Administrative directive
  5. Law of equity

Thus, the abovementioned sources of US laws identify the fabric of its governance in the society,

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Constitution and statues: “A constitutional law in USA constitute unique forms of various states. Constitution as it can be understood are the laws of the people, which is different from ‘statues’, constitution cannot be changed or amended, however, changes to statues can be amended in accordance to change in the society. Moreover, statutory is held responsible by the US congress at the federal level,” [4]

Administrative and Executive laws come from different sources referred in Code of Federal Regulation (CFR) and the federal US government respectively.

Common Law and equity laws: these laws are looked upon as providing common platforms of opinions that should be able to make sure that all parties leave during trial proceedings.

NATURE

Legal action plays a broader role in the United States than any other countries. US system of rules provide constructive remedies to parties and is well recognized for its confrontational nature.

American procedural law has advanced class action measures that have no counterparts in the procedural law of Civil-Law authorities and go well beyond the practices of most other Common-Law authorities. As a consequence of an administration of intricate legal procedures that is so distinctive of the American legal system, regular citizens are less capable of handling their disagreements on their own, and more reliant on upon engaging the services of lawyers. Many think, for instance, disputes over auto accidents and the acquisition and sale of homes and apartments should be figured without lawyers. Yet, in most states in the Unites States the unsolved practices that now functions are the simple matters that could force people to turn these problems over to lawyers.

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Generally, in all civil cases, suits filed are initiated by the plaintiff where cases are decided by a judge or if any significant suit is presented then juries may be involved. As similar to other countries, punishments of civil nature cases are almost always of a monetary nature and not of imprisonment. Defendants’ liability has to be established by the plaintiff after and according to “preponderance of evidence”.

Sometimes, the charges against the defendant may constitute both a civil charge and a criminal charge if the particular wrongful act consisted of both a private injury or a public offense.

Generally, below mentioned stages are followed in a civil suit including the process followed within those stages:

  • A lawsuit is initiated by the plaintiff filing a complaint.
  • A reply is filed by the defendant against the complaint.
  • A scheduling order is then issued by the judge arranging out a timeline for case proceedings which may include the initiation of trial.
  • Motions by the parties and other pleadings may be filed.
  • A jury is then selected to begin the trial proceedings.
  • After hearing both the parties, a decision is then given by either by the jury or the judge.
  • The aggrieved party after the decision may file for an appeal in the appellate court which may prefer for further appellate review.

ANALYSIS

After comprehending UAE and USA laws, it can be realized that both countries’ civil laws are fundamentally different from one another. Laws which are applicable in UAE might not be similar in US. For an instance, if we take administrative laws prevailing in both nations, in US, administrative laws are regulated under code of federal regulation, on the other hand in UAE, the civil code is defined in each state in a separated form. Nevertheless, the UAE follows Sharia law, an Islamic law having it relevance in administrative laws or civil code. Thus, there can be seen a significant difference in both nations and their prevailing administrative laws.

The constitution and the statue in US are considered to be supreme due to which it can be said that it can be held responsible by the US congress at the federal level. Whereas, in UAE in that regard, the Federal Supreme Court is supreme. Although interestingly UAE and USA common laws are somewhat in forms and few parts similar to one another. As an example, UAE common law legislation has an influence of English common laws and in USA common laws, the definition of liberty is also paramount.

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Another similarity is related to media laws in specific, wherein UAE, the judiciary plays a substantial part in order to provide a solution relating to disputes of any in a civil nature and relevantly in USA such media laws are considered to be form of civil laws under the common heading of ‘common’ and ‘equity’ laws in the society specific to media regulation.

The hesitancy of civil laws of USA to imply good faith into agreements while negotiating amongst two commercial parties is widely known and mostly based on the traditional doctrine. The doctrine Is called doctrine of freedom contract in similarity with English Common Law. In contrast to USA, civil law in countries such as the UAE, they follow fulfilling obligations in such a manner that is consistent with good faith recognized as a fundamental part of the contract.

CONCLUSION

The civil law of UAE follows an interrogative approach which is usually applied by the bench. The courts follow litigation to be entirely court-driven where they have the control over hearing schedules, appointment of experts and so on. The judge hearing the case have absolute discretion in any case for the final decision. As far as the UAE courts are in question, they do not particularly adhere to traditional common law standards of evidence, for instance the “likelihood test” in civil claims or the “beyond reasonable doubt” in criminal matters.

USA can be said to be more liberal country so most of its laws also classify themselves in the same bracket. Subsequently, if we consider societal sphere and their cultural domain between these countries there would be quite a disparity. That being said, nearly all of the laws that are applicable in USA might not be applicable in UAE. However, with a few similarities to common laws, it just indicates that common laws are universal in nature. The major difference even so would be few laws which would UAE laws in general to not strengthen be it due to societal, cultural, or traditionally not applicable.

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[1] International Journal for Legal Research & Analysis, Pavan Kumar,R, June 2021

[2] Fed. R. Civ. P. 1.

[3] Jennings, 2005, p. 20

[4] Jennings, 2005, p. 20

 

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Contributory Negligence

By:- Manas Mishra

Many times, we overlook various rules which are made for ourselves or if we say, for the public welfare. It is our duty to act or omit acts which we are not supposed to obey and not obey, respectively. We should always take reasonable steps, keeping our eyes open and adhering to various legislations.

We all are supposed to be law-abiding person and everything depends upon our acts or omission of acts. Acting or obeying restricted acts always result in the creation of unavoidable happenings while the consequences of not following welfare concerned laws cost us more than expected.

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When the plaintiff corresponds by himself to the injury suffered by the negligence of the defendant or unlawful conduct, he is held guilty of contributory negligence. Contributory negligence comes into existence when the plaintiff does not take reasonable care on his part to avoid the harmful consequences. He contributes himself to the mishappening of the event.

Illustration:-

  • A person, riding on the wrong side of the road and meet with the accident arising out of the collision of the car.

Municipal Corpn. Of Greater Bombay v. Laxman Iyer[1]

In this case, it was said that both the parties would be liable for the negligence arising out of an accident. In cases related to contributory negligence, the question of liability would depend upon whether either of them would have tried to take due care and avoid the consequences of other’s negligence. Whoever between them would have taken necessary care to get the consequences rid of, arising out of other’s negligence, would be liable for the negligence. Contributory negligence is completely dependent on the conduct of a plaintiff.

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For exercising defense under contributory negligence, defendant mustprove that the plaintiff did not take reasonable care avoid the accident.

Rural Transport Service v. Bezlum Biwi[2]

The conductor having known the fact that the bus is full of passengers and cannot afford more yet invited many others and made them comfortable at the roof of the bus. The driver tried to overtake the bus, forgetting that passengers of roof of the bus. This action of driver led to death of one of the passengers of roof due to injury arose out of hit by the branch of a tree. The court held that driver and conductor would not be liable for this misshaping since there was contributory negligence on the part of deceased passengers and others who had implied consent to travel on the roof of the bus, taking risk.

Rules for determining Contributory Negligence

  1. The plaintiff’s carelessness regarding the contributory negligence defense does not have the identical meaning as the tort of negligence. The plaintiff does not have to owe the other party a duty of care in this case. What must be proven is that the plaintiff failed to take reasonable precautions for his own safety, therefore contributing to his own harm. Thus, all it takes to show contributory negligence is to demonstrate to the jury and satisfy them that the injured person did not take reasonable care of himself in his own interests and contributing to his own lack of care for himself.

Bhagwat Sarup V. Himalay Gas Co.[3]

It was held that the deliveryman’s fault was solely his own. It has also been noted that simply giving an axe/hammer to the delivery person on request did not indicate contributory negligence on the petitioner’s part, because the petitioner was a layman, whereas the delivery person was a trained individual who was expected to understand the consequences of the conduct he was performing.

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  1. It is insufficient to establish that the plaintiff did not take reasonable precautions to ensure his own safety. It should still be demonstrated that his carelessness caused to the resultant damage. The defense of contributory negligence cannot be invoked if the defendant’s carelessness might well have inflicted the same harm even when the plaintiff had already been cautious, and the petitioner’s fault may not be the main reason for the crash.

Agya Kumar V. Pepsu Road Transport Corporation[4]

It was held there has been simply carelessness on the part of the bus driver, and despite the reality that the rickshaw was overburdened, there was almost no contributory negligence on the part of the rickshaw driver, because the rickshaw’s overburden had no bearing on the accident’s occurrence.

National Insurance Co. V. Kastoori Devi[5]

In this case there was a collision between a motorcycle consisting of three to four people and truck. The collision led to serious accident. It was held that the circumstance that the motorcyclist was transporting three people in the passenger seat did not suggest that he was guilty of contributory negligence. Unless  he veered off the road due to its overweight so this led to the outcomes would he even be convicted of contributory negligence.

 

Scope of Contributory negligence as defence

Contributory Negligence on the claimant’s behalf was proven to be a good defence, and the claimant’s case was dismissed. The claimant was barred from bringing further actions against the reckless defendant due to his own carelessness. Plaintiff’s carelessness does not really imply a violation of duty to one of the other parties, but rather a failure to take reasonable precautions to ensure his own protection. The rule of law states that if both parties share fault for the catastrophe, regardless matter how minor that culpability is on one side, the loss is borne by the party who fails.

Butterfield V. Forrester[6]

It was held that the plaintiff has no basis of claim even though he could have averted the mishap by taking reasonable precautions. When one individual is at fault, it does not negate the need for the other one to take reasonable care of oneself. To establish this claim, there must be an obstacle on the road caused by the defendant’s fault and no lack of due prudence on the claimant’s to prevent it.

The doctrine posed a significant burden for plaintiffs, since even little carelessness on their side might result in their losing their case against a defendant whose carelessness was the primary source of the complainant’s damages. Laws concerned with contributory negligence have been amended by initiating Last opportunity Rule.

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Last Opportunity Rule

When two people are careless, the one who had the later chance to avoid the accident by using ordinary caution should be held responsible for the loss. It indicates that if the defendant is negligent and the plaintiff has a later opportunity to prevent the defendant’s negligence’s effects, the plaintiff will be held responsible. Similarly, if the defendant had the final chance to avoid the disaster, he would be held responsible for the whole damage suffered by the plaintiff.

Davies V. Mann[7]

The complainant chained his donkey’s forefeet and abandoned it on a winding road. The defendant was driving his horse-drawn cart too quickly, and the donkey was killed as a result of his carelessness. Despite his own fault, the plaintiff was found to be entitled to compensation since the defendant failed to follow the last-chance rule.

Subhakar V. Mysore State Road Transport Corporation[8]

The court lowered the amount of compensation due since the claimant was at fault. The claimant-appellant, who was riding a bicycle at the time, abruptly switched to the right side of the road. He was hit by the respondent’s bus, which caused him to fall and injure his leg, needing two and a half months in the hospital. It was held that due to the fact that both parties contributed equally to the accident via their negligence, the claimant’s compensation was lowered by 50%.

Vidya Devi V. M.P. Road Transport[9]

In this case, a motorcyclist collided with a bus and died because of the collision. The bus driver was also found to be at fault for failing to keep a good lookout to avoid a probable accident. It was held that the plaintiff was entitled to one-third of the damages, and he would have been entitled to if the dead motorcyclist had not been negligent.

Municipal Corporation of Greater Bombay V. Shri Laxman Iyer[10]

Supreme court held that in the case of contributory negligence, courts have power to apportion the loss between the parties as seems just and equitable. In this context means that damages are reduced to such an extent as the Court thinks it is just and equitable having regard to the claim.

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Doctrine of Alternative Danger

Despite the fact that the plaintiff is expected to be cautious and the defendant’s carelessness, there may be times when the plaintiff is justified in taking a risk since the defendant has created a dangerous scenario. The plaintiff may feel puzzled or worried because of a risky scenario caused by the defendant, and to protect himself, his property, or a third party from harm, he may take an alternative risk.

As a result, the law allows the plaintiff to face an alternative hazard to protect himself from the threat posed by the defendant. His action against the defendant will not fail if the route he chooses cause him some injury.

Shyam Sundar V. State of Rajasthan[11]

Due to defendants’ carelessness, (the State of Rajasthan), a truck actually belonged to them went up in flames after just four kilometres on a specific day. When one of the inmates leapt out to escape the flames, he collided with a stone by the roadside and died instantly. The defendants were found to be responsible for the same.

Sayers V. Harlow Urban District Council[12]

It was held that Defendants were responsible because the plaintiff’s damage was a natural result of their breach of duty.

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Contributory Negligence of Children

What constitutes contributory negligence in the instance of an adult may not apply to a kid since a youngster cannot be assumed to be as cautious as an adult. To determine whether a suspect is convicted of contributory negligence or not, the maturity of the individual must be taken into account.

  1. Sriniwas V. K.M. Parasivamurthy[13]

In this case, it was held that a 6-year-old kid lacks the road sense and familiarity of his or her elders, the plaintiff cannot be held liable for contributory fault.

D.T.C. V. Lalita[14]

The position of children for the purpose of contributory negligence was explained by Delhi High court I this case:-

“In the case of a held of tender age, conduct on the part pf such child contributing to an accident may not preclude it from recovering in circumstances in which similar conduct would preclude a grown up person from doing so.”

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Conclusion

Contributory negligence often led the claimant to meet with loss as it acts as defence for the defendants. Myriads of judicial decisions show that claimants do not prove their point to get compensated by the defendant when there is a reckless conduct of other party. On other side, it works with great ease as of its defence nature for them. There is no doubt that certain proviso exists for this defence. For instance, in Last Opportunity Rule in which who is found that he has had chance to avoid the mishappening at last, but nothing is brought into action, so he will be liable for reckless conduct. Contributory Negligence is much seen in motor vehicle accident cases.

Many a times there is no way left where plaintiff has to take corrective measures on the spot to save himself or others or the property knowing the fact that complex circumstances have been created by the defendant, he takes the risk. Further while deciding the case, Court has to consider the age in Contributory negligence arises out of conduct of children.

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[1]AIR 2003 SC 4182

[2]AIR 1980 Cal. 165

[3]AIR 1985 H.P. 41

[4]AIR 1980 P. & H. 183

[5]1988 ACJ 8 (Raj.)

[6](1809) 11 East 60

[7](1882) 10 M. and W. 546

[8] AIR 1975 Kerala 73

[9] AIR 197 M.P. 89.

[10]AIR 2003 SC 4182

[11]AIR 1974 SC 890

[12](1958) 2 All E.R. 342

[13]AIR 1976 Goa 1

[14]AIR 1982 Delhi 558

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Contracts in Fashion Industry

By:- Prachi Parekh

INTRODUCTION:

Nowadays, people love to spend upon fashion-related products and this has helped the fashion industry to grow tremendously within a short span of time. The growth in the industry has led to employment generation and variety of career opportunities in the same, as well as innovative services and techniques are being welcomed by the industry. This has again led to growth and discovery of various new channels of providing these services and for which different contracts have to be created for each and every channel. Let us find out about various contracts that can be made under this industry.

TYPES OF CONTRACTS IN THE FASHION INDUSTRY AND CLAUSES CONTAINED IN THEM:

  1. CONSIGNMENT CONTRACT: This is a contract between a retailer and his agent wherein the retailer grants the right to sell, merchandise, conduct an exhibition for sale of the fashion apparel or inventory. Here, the retailer is called as consignor and his agent as consignee in the whole contract.

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CLAUSES IN CONSIGNMENT CONTRACT[1]:

  1. Preamble: It depicts the details and facts of whole contract in short
  2. Duration clause
  3. Terms of sale of products clause
  4. Percentage that each party would receive clause or Consignment fee clause
  5. Payment options clause
  6. Liability for lost or damaged stock clause or Insurance Clause
  7. Effect on non-sale clause
  8. Minimum Price clause:the price below which the fashion products should not be sold
  9. Location and storage of stock during consignment clause
  10. Expenses clause
  11. Modification/Amendment clause
  12. Applicable law clause

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  1. SHOWROOM RENT CONTRACT: It is a contract between the shop owner or showroom owner and the designer of fashion products for renting out the shop space to sell his stock. It is a type of a rent contract between these parties wherein the shop owner grants his shop to the designer against periodical payments of rent for the letting.

CLAUSES IN SHOWROOM RENT CONTRACT:

  1. Preamble
  2. Duration clause
  3. Expenses clause
  4. Terms of the rent payment clause
  5. Applicable law clause
  6. Dispute Resolution clause: In which court to refer the dispute in is included in it.
  7. Terms of letting clause: for example, whether the showroom will be furnished or not
  8. Payment of taxation clause
  9. Breach of contract clause
  10. Liability for damage to the showroom clause
  11. Security deposit clause: the amount of deposit to be given by the designer to the owner for rent
  12. Modification/Variation clause
  13. Termination clause: it also includes notice period to be given to each other

 

  1. FRANCHISE CONTRACT IN FASHION INDUSTRY: This is acontract wherein one party grants the authority to other to open and operate the business in the name of the selling party. The party granting such a right is called as a franchisor and other party is termed as a franchisee. We find many franchises in fashion industry such as Being Human,Fittin, Choupette, Duke, lenskart.com, Bombay dyeing[2], etc.

CLAUSES UNDER FRANCHISE CONTRACT IN FASHION INDUSTRTY:

  1. Preamble
  2. Franchise fee clause
  3. Security Deposit clause
  4. Royalties clause
  5. Mode of Payment clause
  6. Confidentiality clause: wherein the franchisee agrees not to disclose franchisor’s trade secrets
  7. Standards of Operations clause: wherein fixed set of standards have been set and the franchisee needs to follow them accurately
  8. Inspection clause: Right of franchisor to inspect the premises at regular intervals
  9. Applicable laws clause
  10. Proper registrations by franchisor relating to licenses clause
  11. Advertising and Brand Promotion clause
  12. Training, supervision and support clause
  13. Use of trademark and intellectual property clause: This is one of the most important clauses wherein the franchisor needs to have registered the trademark and should have exclusive rights for use of such a trademark
  14. Duration of contract clause
  15. Renewal clause
  16. Termination of contract clause
  17. Dispute Resolution clause: for example, arbitration, mediation, conciliation
  18. Force Majeure clause: Wherein any of the parties fails to perform their functions due to unforeseen circumstances, then what should be done?
  19. FASHION RELATED ADVERTISING AND PROMOTIONAL CONTRACT: It includes a contract between a designer/retailer/manufacturer of fashion products and an advertising and marketing agency for promoting these products through various channels in exchange of an advertising fee.

CLAUSES UNDER FASHION RELATED ADVERTISING CONTRACT:

  1. Preamble
  2. Duration of contract
  3. Scope of Work clause
  4. Budget and Payment schedule clause
  5. Advertising fee/price clause
  6. Consequences of late payment clause
  7. Breach of contract clause
  8. Termination clause
  9. Dispute Resolution Clause
  10. Copyright clause: This ensures that the ad agency is properly disclosing all the due credits and information relating to their use of any product or services which leads to prevention in copyright violations.
  11. Confidentiality clause
  12. Indemnity clause: If the designer/retailer/manufacturer faces any financial hit, or some similar situation and has not paid the ad agency as per the terms of the contract, then they will need to indemnify the ad agency for their loss
  13. Terms and conditions clause

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  1. FASHION INDUSTRY EMPLOYMENT CONTRACTS:The employment contracts in fashion industry have a wide range. These can include employment for modelling and acting, designing, stitching, manufacturing, transportation and distribution/shipping of fashion products.

CLAUSES OF FASHION RELATED EMPLOYMENT CONTRACTS[3]:

  1. Preamble: Information relating to the facts for entering into the contract, parties and type of employment
  2. Duration clause
  3. Force Majeure clause
  4. Salary/Wages/Remuneration related clause
  5. Number of working days clause
  6. Confidentiality clause
  7. Annual/sick Leave clause
  8. Maternity/Paternity leave clause
  9. Liability for breach of contract clause
  10. Termination clause
  11. Dispute resolution clause
  12. Places to be worked at clause
  13. Other perks or social benefits clause
  14. Overtime clause
  15. Retrenchment Benefits clause
  16. Outsourcing/ sub-contracting clause
  17. Restrictions/prohibitions in employment clause: Sometimes there may be restrictions to the person being employed by and an employer in the fashion industry relating to age, marriage etc and is included in this clause.
  18. Survivability clause
  19. Severability clause

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  1. OUTSOURCING CONTRACTS IN FASHION INDUSTRY:These contracts include outsourcing certain services or products which are important to the fashion industry. For example, fashion events management services, human resource services, apparel outsourcing, technology outsourcing.

CLAUSES UNDER FASHION OUTSOURCING CONTRACTS INCLUDE[4]:

  1. Preamble: including the reason, facts and details of parties entering into the contract
  2. Retained Rights clause: Each party retains certain rights with respect to title, interest etc
  3. Terms and conditions clause: It may include that the services or products must be of good quality and free from any defects
  4. Remuneration clause
  5. Duration clause
  6. Liability for Breach clause
  7. Confidentiality clause
  8. Survivability clause: it ensures that even after the contract has been performed certain terms and conditions in the contract will still remain in force, this is because of the confidentiality and non-disclosure clause, as the trade secrets have to be kept secret even after completion of the performance to the contract.
  9. Termination clause
  10. Guarantee/Warrantee clause
  11. Modification/Amendment clause
  12. Technical assistance clause
  13. Territories of providing services clause
  14. Inspection and acceptance clause
  15. Applicable Law clause
  16. Severability clause:Due to any uncertainty if provision of this contract becomes unlawful or impossible to perform, then this clause ensures that the whole contract is not termed as unenforceable but except the certain provisions remaining of the contract remains in force with full validity.
  17. Independent contractor clause
  18. Dispute resolution clause

CONCLUSION:

Thus, as we saw above these were some of the different types of contracts under the fashion Industry and some of which though contains similar clauses but are also specialised as per their work. Some clauses such as severability, survivability, dispute resolution, applicable governing laws, confidentiality clause, force majeure clause are amongst the most important clauses which safeguards the contract against uncertain or unforeseen events that can make the contract disputable or void. Inserting these clauses ensures that the contract remains in force and is termed to be valid. The non-disclosure clause also ensures that the valuable trade secrets are not revealed by the parties to the contract and the survivability clause exists even after the parties have finished dealing or performing as per the contract and if such a term is breached, the consequences need to be faced by the defaulting party as per the provisions in that effect in the respective contract.

[1]https://www.pandadoc.com/consignment-agreement-template/

[2]https://topfranchise.com/articles/the-top-10-fashion-franchise-businesses-in-india/

[3]https://legaltemplates.net/form/employment-contract/

[4]https://www.pandadoc.com/business-contract-template/

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Inconspicuous Agony of The Innocent: Child Sexual Abuse in India

By: Isiri Rajaneesh

Introduction:

An omnipresent yet a discreet problem in India, child sexual abuse, defined as “the misuse of power and authority, combined with force or coercion which leads to the exploitation of children in situations where adults, or children sufficiently older than the victim to have greater strength and power, seek sexual gratification through those who are developmentally immature, and where, as a result, consent from the victim is a non-concept,”[1]has a slew of negative effects on children and contributes to conditions such as arrested development, psychological, physical and behavioral impacts and may also lead to post traumatic stress, depression, anxiety, etc.

The problem of sexual abuse of children is one which often goes unreported and the innocent victims are just left to agonize in silence. Offensive activities such as molestation, sexual assault, incest, sodomy, etc. are included under the ambit of child sexual abuse. In 2012, the Protection of Children from Sexual Offences Act (POSCO), was enacted in order to protect children from sexual abuses as well as to secure the rights of children. This article analyses the different facets of the act and also looks into a few of its shortcomings.

An abridgement of Child Sexual Abuse in India:

With a population as huge as India’s, the sexual abuse of children is an entrenched social problem and this problem is a culmination of various socio-cultural factors such as poverty, abandonment of children, illiteracy, cultural beliefs and practices pertaining to parental rights and styles, family secrecy, etc.[2]Child sexual abuse is a problem which is as substantial as adult rape, but the line of difference between the two is that children usually aren’t aware that they are being sexual abused or experiencing any kind of abuse for that matter and if they do, they are scared to report it to their parents.

Child abuse is categorized into various types, namely sexual abuse, physical abuse, non-physical abuse, incest, commercial sexual exploitation of children, online sexual abuse and so on. In rural India, especially, girls face discrimination pertaining to education, status, etc. and are most likely to experience infanticide and it was this problem of infanticide, along with child rapes and institutional abuse of children that led to the commissioning of the first, large scale, government sponsored research study to assess the extent and nature of child abuse in India.[3]As according to this study,while for every second a child reported emotional abuse, 69% reported physical abuse and 53% reported some form of sexual abuse and half of the sexual abuses reported were committed by people known to the child.[4]As according to many studies, upto 20% of sexual abuse transpired in families and upto 50% in various institutional settings.[5]In 2018, as per the data released by the National Crime Record Bureau, close to a 109 children faced sexual abuse every day, and the number increases substantially every year.

Until 2012 there was no bona fide legislation in India to address sexual crimes against children. Those sections of the Indian Penal Code which recognise sexual offences against children have a loophole and are not specific to children and other forms of sexual assaults, exploitations, etc. were beyond the domain of explicit crime. In 2012, the government of India enacted the Protection of Children from Sexual Offences Act (POSCO) which criminalizes child pornography, sexual harassment and sexual assault against children. This legislation was a milestone pertaining to the area of child protection.

POSCO and its distinguishing characteristics:

A landmark legislation, acquiring justice for children who have been victims of various sexual offences as well as securing their interests and well-being are some of the objectives of the POSCO act. The act also mandates setting up of special courts in order to accelerate trials of these offences[6]as any delay in the conveyance of justice can discombobulate the lives of the victims and their families, not to mention that facing the complexity of the judicial system, such as intense questioning of the victim in the court, the media hype surrounding the case, etc., can be an enervating journey for victims and their families alike. Some of the features of POSCO are as follows-

  • Copious offences, ranging from complete or partial penetration, non-penetrative sexual assault, to stalking, exhibitionism, child pornography, etc. [7] are criminalised by the act.
  • As according to sections 5 and 9 of the act, perpetrators who are familiar to the victim or are in a position of authority, such as public servants, police officers, etc. attract severe penalties. This includes sexual offences such as gang rape, assault, causing bodily harm, infecting a child with HIV, etc., committed by people in a shared household with the child or by people who are in a position of power pertaining to the victim.[8] The act takes into account a slew of possible scenarios.
  • POSCO takes into account sexual offences committed against both girls and boys who are under the age of 18 and also necessitates punishment for all offenders, disregarding age or gender.
  • An exclusive feature of the act is that the burden of proof is on the accused, i.e., the accused is presumed to be guilty until proven innocent. This is in order to ensure that the child is not burdened to prove that the crime took place.
  • POSCO also provides for trials to be held in a child-friendly way in order to reduce the trauma of the victim and calls for procedures to be held in a sensitive manner according to the needs of the child, for example, section 24 provides that the police reach out to the child rather than the child being taken to a police station and made to report the offence committed.
  • In order to protect the identity of the victim, the act calls for trial proceedings to be held privately and in a sensitive manner, with the victim’s testimony given either in camera or held behind curtains or screens.[9] Also, under the rules of the act, a Child Welfare Committee is to be appointed in order to support and provide assistance to the victim through the investigation and trial procedures

While the enactment and implementation of the act was a welcome move, there were a few shortcomings, which may cause unintended, negative consequences and which are discussed below.

Lacunae in the POSCO Act:

While there were several issues pertaining to the implementation of the POSCO Act, the three main lacunae are age of consent, incumbent reporting and determination of the ages of the victim as well the perpetrator.

As according to the act, all sexual acts are criminal offences if the victim is under the age of 18 years. [10]The law criminalises sexual behaviour for those under the age of 18 and there is no sexual autonomy given to those below 18, which gives birth to complications in cases of consensual sex between two minors, where the victim and the perpetrator become synonymous since they are liable for violating the law which obdurately criminalises sexual activity between minors. There is tension between the letter of the law and the spirit of the law as criminalizing such behaviour would not serve the purpose of the enactment and the notion that the state can restrict individual autonomy on sexual behaviour was rejected.[11]

Pertaining to incumbent or mandatory reporting of child sexual abuse, three main issues arise, which are-

  1. Criminalizing sexual behaviour for those below 18 has led to the problem of health professionals, counsellors, etc. being disinclined to treat the effects of unsafe sexual practices as reporting such behaviour to the authorities breaches the confidentiality of the patient and also leads to the health professionals’ involvement in the case.
  2. The breach of trust would affect the efforts of those institutions and organizations working with backword communities and young people as the communication and relationship with them is placed on trust and the legal duty to report any knowledge of consensual, underage sexual behaviour jeopardises the efforts of those organizations to communicate, educate and work with young people.
  3. There is also the issue of who is responsible for the enforceability of this legal duty. Imposing a legal duty with sanction without a proper structure for its enforcement results in cases of failure to report being overlooked.[12]

Determination of the ages of the victim and the offender is tangled as there are no bona fide guidelines on how to do so. In India, a large proportion of births are not registered andage determination without birth certificates and other official documents is difficult and the measure of constructing a special medical team or board for determining the age cannot be the only conclusive facet. This poses a problem as the ages of both the victim and the perpetrator is important in determining the outcome at the investigation and trial stages under POSCO.

Conclusion:

Child sexual abuse is a very significant problem in India and the enactment of the protection of Children from Sexual Offences Act was a commendable move on behalf of the government of India. This legislation has many distinctive provisions and has made a noteworthy contribution to tackle the problem of sexual abuse of the innocent. With the expeditious increase in the number of child sexual abuse cases being reported, there is no doubt that POSCO has significantly contributed to educating the masses about sexual abuse of children, has accelerated the investigation and trial stages of the offences and has ensured that the trials are held in a sensitive manner, so as to reduce the trauma of the victim. Overall, the law is unique and lucid, but the issues identified can create latent problems, pertaining to the implementation of the law. While the government has enacted a significant legislation to tackle the problem of child sexual abuse, it is paramount to realize that the people of this country are also responsible to provide as safe an environment as they can for children and to make sure that a victim of child abuse does not feel inferior or frightened by building an approachable perspective so as to ensure that the victim does not feel hesitant to talk about the problem they are facing.

 

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Isiri Rajaneesh is a second-year law student, pursuing a BA.LLB [Hons]. at PES University, Outer Ring Road Campus in Bengaluru

 

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[1] David K. Carson, Jennifer M. Foster & Nishi Tripathi, Child Sexual Abuse in India: Current issues and Research, PSYCHOLOGICAL STUDIES (Aug 14,2013), https://www.researchgate.net/publication/271951215

[2] Ibid

[3] Belur, J., Singh, B.B., Child Sexual Abuse and the law in India: a commentary, CRIME SCIENCE 4 (Oct 9, 2015), https://doi.org/10.1186/s40163-015-0037-2

[4] Ibid

[5] Ibid

[6] Ibid

[7] Legal Service India, http://www.legalserviceindia.com/legal/article-4985-child-sexual-abuse-in-india.html

[8] Belur, J., Singh, B.B., Child Sexual Abuse and the law in India: a commentary, CRIME SCIENCE 4 (Oct 9, 2015), https://doi.org/10.1186/s40163-015-0037-2

[9] Ibid

[10] Ibid

[11] Ibid

[12] Ibid