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Tortious Liability of Companies in India and USA

By: Prashant Pathak

 

“A tort is a common wrong for which the cure is an activity for unliquidated harms and which isn’t solely the penetrate of an agreement, or the break of a trust, or the penetrate of other only impartial commitment”- Salmond

The term ‘tort’ was brought into the phrasing of English Law by the French talking legal counselors and Judges of the Courts of Normandy and Angevin Kings of England. As a specialized term of English law, misdeed has gained an exceptional importance as a types of common injury or wrong. Till about the center of the seventeenth Century misdeed was a dark term, when method was viewed as more significant than the privilege of a person. This accentuation on procedural perspective for deciding the accomplishment for a case proceeded for exactly 500 years, till 1852, when the Common Law Procedure Act was passed and supremacy of substance over the technique progressively picked up firmer ground. Today the adage as it stands seems to be ‘ubi jus ubi remedium’, for example where there is not too far off is cure.

Tort is what might be compared to the English word ‘wrong’ and of the Roman law term ‘delict’. The word misdeed is gotten from the Latin word ‘tortum’ which means contorted or abnormal or wrong and is as opposed to the word rectum which implies straight. It is required out of everybody to act in a clear way and when one goes astray from this straight way into screwy ways he is said to have submitted a misdeed. Thus misdeed is a lead which is wound or slanted and not straight. In spite of the fact that numerous conspicuous essayists have attempted to characterize Tort, it is hard to do as such for shifted reasons. The vital explanation among this being, that the law of Torts depends on chose cases. Judges while choosing a case, feel their essential obligation is to decree the situation close by as opposed to set down more extensive guidelines and consequently they only from time to time set out any meaning of a lawful term. Besides the law of misdeed is as yet developing. On the off chance that a thing is developing no acceptable definition can be given.

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TORTIOUS LIABILITY:

It is relevant to comprehend what is implied by tortious obligation or rather the idea of misdeed law to comprehend its utility. To toss all the more light, the word misdeed developed, from at one time very nearly passing into abstract use as an equivalent for wrong yet after the center of the seventeenth century, a training started in the courts of the customary law, of recognizing activities in ‘contract’ for breaks of agreement and activities for different wrongs, and of utilizing the word ‘misdeed’ as a succinct title for the last class of activities. From that point forward it was regular to discuss ‘activities in agreement’ and ‘activity in tort'[1]. So a misdeed came, in law to allude to that specific class of wrongs for which an activity in misdeed was perceived by the courts of customary law as a cure and to lose the nonexclusive feeling of wrong which it might have helped in well known use.

Another fascinating consequence of this relationship of the word with a type of activity was that it came to allude likewise to the obligation of an individual who didn’t submit any misdeed or wrong, for example an expert who is sued for the harms by the individual harmed by a misdeed submitted by his servant[2]. This was on the grounds that an ‘activity in misdeed’ was the cure against the expert and in course of time and because of new requirements and conditions, the expert was held subject to pay harms despite the fact that he had not submitted any misdeed. So the law of misdeeds is that assortment of law which manages the risk of people against whom an ‘activity in misdeed’ would lie.

tort as we probably am aware today has developed throughout the long term and has filled immensely in nations, for example, the England, United States of America, and other reformist nations and partly in India. The primary investigation in this article anyway would spin around two parts of this part of law, initially, regardless of whether the law of misdeed in India is pointless and besides, whether the law of misdeeds has been basically disregarded. Prior to proceeding onward to the center subject it is basic to completely comprehend the significance of the term misdeed in the Indian setting.

TORT LAW IN INDIA:

In India the term tort has been in presence since pre-freedom time. The Sanskrit word Jimha, which means warped was utilized in antiquated Hindu law text in the feeling of ‘tortious of fake conduct’.[3] However, under the Hindu law and the Muslim law, misdeed had a much smaller origination than the misdeed of the English law. The discipline of violations in these frameworks involved a more noticeable spot than pay for wrongs. The law of misdeeds in India as of now, is mostly the English law of misdeeds which itself depends on the standards of the custom-based law of England. Anyway the Indian courts prior to applying any standard of English law can see whether it is fit to the Indian culture and conditions. The utilization of the English law in India has consequently been a particular application.

“We need to develop new standards and set down new standards which will enough arrangement with new issues which emerge in a profoundly industrialized economy. We can’t permit our legal deduction to be built by reference to the law as it wins in England or for the matter of that in any far off nation. We are absolutely set up to get light from whatever source it comes yet we need to construct our own law.”

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During British standard, courts in India were charged by Acts of Parliament in the UK and by Indian institutions to act as per equity, value and great still, small voice if there was no particular principle of authorized law relevant to the contest in a suit. As to suits for harms for misdeeds, courts adhered to the English customary law to the extent that it was consonant with equity, value and great still, small voice. They left from it when any of its standards seemed nonsensical and unsatisfactory to Indian conditions. An English resolution managing misdeed law isn’t by its own power pertinent to India however might be followed here except if it isn’t acknowledged for the explanation just referenced.

TORTIOUS LIABILITY OF COMAPANIES IN INDIA:

The law of torts in India depends on the standards of the English Common Law. Be that as it may, it has been adjusted to meet the nearby necessities. A portion of the significant standards of misdeeds incorporate carelessness, disturbance, trespass, vicarious obligation, severe and supreme risk. In setting of the current article, we will center upon the ideas of exacting and total obligation versus the two outstanding modern fiascos in India.

  1. a) Doctrine of Strict Liability

The regulation of “severe risk” advanced in Fletcher v. Rylands. For this situation, Rylands employed temporary workers to assemble a supply on his territory. While building it, the contractual workers found a few imperfections and left them unfixed. After some time, Rylands’ repository burst and overflowed Fletcher’s bordering mine causing £937 worth of harm. Blackburn, J. believed that any individual who for his own motivations welcomes on his property and gathers and keeps there anything liable to do underhandedness, in the event that it gets away from should keep it at his hazard and in the event that he doesn’t do as such, is at first sight responsible for all the harm which is the regular outcome of its escape.

  1. b) Doctrine of Absolute Liability

The guideline of “outright risk” was first historically speaking applied by the Supreme Court of India in M.C. Mehta v. Association of India (popularly known as Oleum gas spill case). For this situation, oleum gas spilled from a manure plant of Shriram Foods and Fertilizers, Delhi and made harm a few people. A forthcoming public interest suit (PIL) by M.C. Mehta gave the occasion to the Court to pass a progression of requests managing the eventual outcomes of gas spill. For this situation, the Court objected the utilization of the standard of severe risk

  1. Bhopal Gas Tragedy

Association Carbide India Limited’s (UCIL) plant at Bhopal was planned by its holding organization Union Carbide Corporation (UCC), USA and was inherent 1969 for making pesticides, created by responding Methyl Isocyanate and Alpha Naphthol. An occurrence of gas spill occurred in the Bhopal pesticide plant of UCIL the evening of 2-3 December, 1984 making extreme misfortune the lives of individuals in the region. Individuals were presented to this gas all around the city and the quick impacts were hacking, retching, serious eye disturbance and a sensation of suffocation. A huge number of individuals passed on quickly, and lakhs of individuals continued perpetual wounds.

Then, the Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985was passed by Parliament to give certain forces on the Central Government to make sure about that cases emerging out of, or associated with, the Bhopal gas spill fiasco, are managed expediently, successfully, impartially and to the best bit of leeway of the petitioners and for issues coincidental thereto. This Act made the Union Government illustrative of the casualties of the misfortune and permitted them to record suits for their sake. Alongside this, an out of court settlement between the Government of India and Union Carbide was shown up at, which fixed the risk of the organization to pay $470 million according without limit and last settlement, everything being equal, rights and liabilities emerging out of that fiasco. With everything taken into account, it was a terrible move, as the settlement restricted the liabilities for the cases which were recorded later. It is a hard certainty, however it is as clear as open air that $470 million dollars were not adequate to remunerate all the harmed. Truth be told, it is not really 15% of the first case of $3.3 billion.

The pay granted was around Rs. 1 lakh for the groups of the individuals who lost their lives, Rs. 50,000 for forever harmed and Rs. 25,000 for briefly harmed.

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TORTIOUS LIABILITY OF COMPANIES IN USA:

ENTITY LIABILITY:

The idea of element obligation permits an enterprise to be held at risk for the criminal wrongdoings of its representatives if (1) the specialist is acting inside the real or evident extent of their business or authority and (2) if the specialists mean, in any event to some degree, to some way profit the organization through their activities. The organization can at present be held at risk for their representatives’ criminal offenses or activities regardless of whether the specialists’ activities are in opposition to corporate strategy or straightforwardly dismiss express requests of the enterprise. This standard was set up in New York Central and Hudson River Railroad v. US, 212 U.S. 481 (1909), where the court chose to expand the misdeed precept of respondeat better than criminal cases, setting up a type of corporate criminal obligation for activities of company’s representatives.

ARE AMERICAN COMPANIES LIABLE FOR TORT COMMTITED ABROAD?

In Ogoniland, Nigeria, ecologically concerned protestors were beaten, assaulted, and murdered for shows contradicting forceful oil advancement in the Ogoni Niger River Delta. Nigerian nationals brought suit under the Alien Tort Statute (ATS) in the Southern District of New York, asserting that unfamiliar enterprises that work together in the United States helped and abetted these atrocities. In Kiobel v. Illustrious Dutch Petroleum Co., the Supreme Court held that unfamiliar organizations are not dependent upon obligation in the United States for tortious acts outside of the United States. Be that as it may, on the grounds that Kiobel managed an unfamiliar enterprise, the assessment left open whether or not a United States organization could be at risk for tortious acts outside of the nation, and the open inquiry brought about a circuit split. The Fourth Circuit has held that American partnerships can be sued for acts submitted outside of the United States, while the Eleventh Circuit has extended Kiobel and expressed that American courts need ward over these cases, hence excepting them in that circuit. The Fourth Circuit’s thinking is a superior examination of cases brought under the Alien Tort Statute (ATS) on the grounds that the resolution was proposed to give a solution for outsiders harmed by Americans. Thusly, the United States has a commitment to give a gathering to noncitizens to get pay for misdeeds submitted by Americans in different nations. Moreover, the ATS was made to manage an American resident’s lead outside of the United States. Without a court authorizing this commitment, companies have minimal solid motivation to screen workers’ potential tortious exercises abroad.

Kiobel v. Illustrious Dutch Petroleum Co.

 In Kiobel, Nigerian residents claimed that the Royal Dutch Petroleum Company and Shell Transport and Trading Company helped and abetted the Nigerian government in viciously stifling fights against forceful oil advancement in Nigeria. The offended parties looked to recuperate in United States court under the ATS for the savage, tortious acts submitted in Nigeria. The ATS gives that “the region courts will have unique purview of any considerate activity by an outsider for a misdeed just, dedicated disregarding the law of countries or a deal of the United States.” The offended parties asserted that the organizations abused Nigerian law. On allure, the Supreme Court confronted the issue of whether an ATS case could gives harms to activities by non-American enterprises a working in an unfamiliar area. The Court depended on a legal standard known as the “assumption against extraterritorial application” to discover that the ATS doesn’t cover these claims. The Court held that the assumption against extraterritorial application applies to claims under ATS, yet that nothing in the resolution counters that assumption, so the ATS didn’t matter to the cases in Kiobel. Further, all pertinent lead in Kiobel occurred outside of the U.S.However, the Court expressed that if claims “concern the domain of the United States,”they can refute the assumption against extraterritorial application, yet should have adequate power to do so. Thus, this holding left open whether or not government courts have position to hear claims with respect to tortious acts submitted outside the United States yet that “contact and concern” the United States by prudence of their American tortfeasors.

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Role of Copyright Law in the Media Industry

By Megan Carvalho

What is Copyright?

Copyright is a form of Intellectual property that gives its owner exclusive rights to reproduce, publish, sell, or distribute a creative work. Copyright relates to literary and artistic creations, such as books, music, paintings and sculptures, films and technology-based works (such as computer programs and electronic databases). In certain languages, copyright is referred to as authors’ rights[1]. Copyright in India for literary, dramatic, artistic and musical works last for sixty years after the death of the author, while copyright for cinematographic films, photographs and sound recordings last for sixty years.

Unauthorized reproduction, importation or distribution either whole or of a substantial part of the work protected by copyright is called copyright infringement. Section 51 of the Copyright Act, 1957 deals with infringement of copyrights. However, all unauthorised use of copyrighted works are not infringement as certain acts are not considered to be infringement of copyright. They are treated as fair dealing of copyright work, such as, private and personal use, criticism or review, and reporting of current events and current affairs.[2]

Copyright and the Media

Media of all types, TV, radio, film, music, advertising, press, publishing and even the internet, are regulated by various different laws and statutory and non-stautory bodies. While the freedom of speech and expression guaranteed by Art 19(1)(a) of the Constitution of India broadens the scope of the media, laws such as the Press And Registration Of Books Act, the Cable Television (Regulation) Act, the Copyright Act, and even the Indian Penal Code lay down certain restrictions on the media industry.

Copyright Law plays a great role in the media industry, since the owner of an original creative work holds the exclusive rights to reproduce, copy, publish, broadcast and even translate or adapt his work. The economic benefit given by virtue of a copyright provides an incentive to the author to create new works and protect them against infringers, encouraging new and creative works by many different people. Thus, the media industry is very much affected by the provisions of the copyright laws and the exceptions provided under it.

Copyright and Press Media

Press Media is mass media that delivers news to the public. This includes print media (newspapersnewsmagazines), broadcast news (radio and television), and more recently the Internet (online newspapers, news blogs, news videos, live news streaming, etc.). Press media is concerned with facts, so not all press is copyrightable but among those that are, the written works such as newspapers, news-magazines and blogs are copyrighted as ‘literary works’, while TV news broadcasts and news videos can be considered ‘Cinematographic films’[3], and radio broadcasts and news podcasts as ‘Sound recordings[4]’ under the Copyright Act.

Works that are not creative or original cannot be copyrighted, so, news, facts or information cannot be copyrighted as they have not originated from the author (even if he was the one to discover them). While the news itself cannot be copyrighted, a copyright can exist in the expression of that news[5]. Copyright in India only protects original and creative expressions of ideas and not ideas themselves.[6] Even Article 2(8) of the Berne Convention for the Protection of Literary and Artistic Works 1886 excludes the protection for “news of the day or to miscellaneous facts having the character of mere items of press information.”

The reproduction or publication of anything in the public domain does not amount to infringement of copyright[7]. Therefore, if a person gains knowledge of an event and creates news item or publishes an informative story on an online blog or shares a report, perhaps on Whatsapp or Twitter, he cannot be said to be violating any copyright as long as he does not copy anybody else’s creative expression.

Copyright and Advertising

Advertisements are paid, non-personal, public communication promoting causes, goods and services, ideas, organizations, people, and places, through means such as direct mail, telephone, print, radio, television, and internet.[8] They serve a dual purpose, first, they inform the consumers about the product, giving information about price and potential performance, secondly, they persuade consumers to buy their product by various means such as attractive captions, slogans, characters, repetition etc.

Advertising is a very fast growing and highly competitive industry, where using intellectual property laws to protect the advertisements is of utmost significance. The copyright law is of relevance not only to the advertisers and advertising agencies, but to the creative persons such as visualizers, art directors, copy script and slogan writers, performers and so on, who are engaged in creating valuable advertising property.

Like all other creative work, for an advertisement to be copyrightable it must be original[9], must involve some form of expression and not be just an idea (there is no copyright for ideas)[10], it must not be from the public domain[11] and must involve some sort of labour, skill and capital[12]. If these conditions are satisfied a copyright can be given to an advertisement of any type, an advertisement has various components involving literary, artistic, dramatic, musical skills each of which may be protected under the classes of work mentioned in section 13 of the Copyright Act, 1957.

Catalogues, brochures etc. fall under the head of literary works and copyright subsists in them. Courts have on a number of occasions held that copyright subsists in trade advertisements and catalogues. In Collis v. Carter[13] it was held that copyright subsisted in a dry list of ordinary medicines sold by a chemist, arranged in alphabetical order, which had required labour, expense and trouble, but no literary skill in its compilation. In Maple and Co. v. Junior Army and Navy Stores[14] an illustrated catalogue for advertisement and not for sale was held to be a book and subject matter of copyright. It is always open to doubt whether the component parts of the catalogue are original but a catalogue is generally a compilation upon which the compiler has exercised skill and judgement[15].

While advertisements printed in newspapers or magazines or even on the internet may contain written material, copyright does not protect names, titles, individual words, short phrases, and slogans. Words cannot be given copyright even if the in question is an invented word[16], though it may be protected by trademark.

TV commercials and advertising films can be included in the category of cinematographic films as defines in section 2(f) of the Copyright Act, 1957. In R.C. Products Ltd v. S.C. Johnson Ltd.[17], where there was an adaptation of the elements of advertisement or get up by the respondent and there was material on record clearly suggesting that the subsequent TV commercial was a copy of the earlier one, the court passed an injunction order against the respondent in a suit for infringement of copyright.

Radio Jingles may be copyrighted as a sound recording according to section 2(xx) of the Copyright Act. With regard to musical works in advertising, using familiar songs or catchy music in the advertisement is an effective marketing strategy and thus many advertisers use licensed copyrighted music. In the case of William Music v. Pearson Partnership[18], an advertising agency produced a TV advertisement for a bus company, which parodied the lyrics and music of “There is Nothin’ Like a Dame” from Rodgers and Hammerstein’s musical “South Pacific”. The plaintiffs sued the respondent agency. The judge held that no special rules applied to parodies when it came to copyright and that there was infringement of copyright held by the plaintiffs in the music.

Advertisements are generally creative works created by many people in the employment of the advertiser, therefore, in the absence of an agreement to the contrary, the employer will be the owner of the copyright. Generally, in case of an employer-employee relationship the copyright lies with the employer, while in case of an independent contractor the copyright lies with the author.

Copyright and the Internet

The Internet has become a vital platform for delivering digital content such as movies, music, books, news, and software. The global reach of the Internet enables digital content to be nearly instantaneously delivered to any part of the world, meaning that international barriers are significantly reduced or eliminated in the case of digital content. Which means that copyright is a very important mechanism for creation and dissemination of digital content. However, the ubiquity of the internet also means that copyright infringement and online piracy is easier than ever.

The Copyright Act, 1957 gives certain rights to the owner and lays down the provisions relation to the infringement of copyright, but makes no provision as to whether such infringement occurred in cyberspace or in physical world. However, the internet is a very different type of media, due its wide accessibility, the ability to disperse information to a huge audience almost instantaneously at a cheap cost, and the difficulty in telling apart the original and the copy, which makes it difficult to apply the traditional theories to the cyberspace.

While it is clear that reproducing any copyrighted work, issuing copies of the work to the public or communicating the work to the public would amount to the copyright violation under the Act even on the internet, in cases of copyright violations like in linking, framing and in-lining there is no reproduction of any copyrighted work.

Linking means connecting two web pages on the internet. The user is provided for an access of a website through the original site. It is of two main types, surface linking and deep linking. In surface linking, the site provides the link to the homepage of another site. In deep linking, the site offers a link to the inner pages of the website, bypassing the homepage. Deep linking can amount to copyright infringement as such a hyperlinker’s actions can amount to ‘communication to the public’[19]. In the Shetland Times Ltd. v. Dr Jonathan Wills and Zet News Ltd.[20] both parties offered Internet-based news services. The “Shetland News” reproduced verbatim a number of headlines from the online edition of the Shetland Times as hypertext links to the corresponding news articles which led to users bypassing the front page of the Shetland Times’ web site and reading only the linked texts. It was argued that both their web site and that of the defenders were cable programmes, and that the defenders infringed copyright under s20 of the Act[21] and the Court granted an interim injunction for Copyright protection.

Framing is the juxtaposition of two separate Web pages within the same page, usually with a separate frame with navigational elements. It is generally viewed as stealing another website’s content, however, framing does not directly reproduce or distribute any copy of the original web page. Therefore, because case law has not been developed definitely regarding framing, it is more likely to be regarded as copyright infringement if copyrighted material is modified without permission or if customers are confused about the association between the two sites[22].

“In-lining” is the process of displaying a graphic file on one website that originates at another. Instead of copying the elements to the composite page, the elements are linked in by “pulling in” graphic or image files from another site and displaying on the composite Web page. According to section 14 and 51[23], reproducing any copyrighted work, issuing copies of the work to the public or communicating the work to the public could amount to copyright violation, but the person who employs an in-line link on his site is not causing any reproduction of the copyrighted content. However, in-lining creates moral issues as Section 57 of the Copyright Act, 1957 allows the copyright author to claim authorship of the work and provides that author of the copyrighted work has a right to see that his work is not being distorted, mutilated or modified. Therefore, the courts to decide upon the legality of in-lining from case to case. In case an in-line link amounts to aiding in distribution or communication with dishonest intentions, the courts will come forward and declare such it illegal.

Conclusion

Media is a broad and ever-changing field, especially with the advent of the internet, and since the media is made up of much creative expression and labour, copyright plays a great role in this industry. What is and isn’t copyrightable, what constitutes infringement and how enforceable copyright is, all greatly influence how media is made and consumed. Therefore, since copyright plays such an important role in the media industry, it is imperative that copyright laws stay abreast with the times and provide a clear path for the equitable development of the media industry.

[1] Understanding Copyright and Related Rights, WIPO, 2016

[2] Sec. 52(1)(a) of the Copyright Act, 1957

[3] Sec. 2(f) of the Copyright Act, 1957

[4] Sec. 2(xx) of the Copyright Act, 1957

[5] Springfield v. Thame, (1903) 89 LT 242 at 243

[6] RG Anand v. Delux Films, (AIR 1978 SC 1613)

[7] Eastern Book Company v. D.B. Modak (2008) 1 SCC 1

[8] advertisement (ad). BusinessDictionary.com. WebFinance, Inc. August 16, 2020, <http://www.businessdictionary.com/definition/advertisement-ad.html>.

[9] Cramp & Sons Ltd v Frank Smythson Ltd [1944] AC 329

 

[10] RG Anand v. Delux Films, (AIR 1978 SC 1613)

[11] Eastern Book Company v. D.B. Modak (2008) 1 SCC 1

[12] Mishra Bandhu Karyalaya And Ors. vs Shivratanlal Koshal AIR 1970 MP 261

[13] Collis vs. Carter [1898] 78 LT 613

[14] Maple and Co. vs. Junior Army and Navy Stores [1893] 21 Ch D 369

[15] Lamb v. Evans (1893) 1 Ch. 218.

[16] Exxon Corp. v. Exxon Insurance Consultants International Ltd [1982] Ch. 119

[17] R.C. Products Pty., Ltd., vs. S.C. Johnson Pty. Ltd., 26 IPR 98 (Federal Court of Australia)

[18] William Music vs. Pearson Partnership [1987]FSR 97

[19] Section 2(ff) of the Indian Copyright Act, 1957

[20] Shetland Times Ltd v Dr Jonathan Wills and Zet News Ltd ,(1997) FSR 604, 1997 SLT 669

[21] Copyright, Designs and Patents Act 1988

[22] Section 57 of the Copyright Act, 1957

[23] The Copyright Act, 1957