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Corporate Social Responsibility and the related provisions in India and USA (Impact of COVID-19)

By: Anmol Sharma

In these times of crisis, a strong commitment to the well-being of stakeholders is of utmost importance. Companies around the world are currently facing sharp drops in demands that puts job at risks, threatens the income of suppliers and local communities in which we erode the confidence of providers finance to firms. Therefore welcome that companies around the world are stepping up their social responsibilities activities examples are Unilever a British dutch conglomerate that donated soaps, sanitizer, bleach, and food. German chemical company BASF gave away over 100 million masks and supplied health care facilities with hand sanitizers for free of charge. Microsoft grants its worked 12 weeks of paid parental leave because of school disruption. Another example could be of Danone, they announced to guarantee all employment contracts and wages onto the summer to extend childcare and health care programs and to put in place a 300 million euro find to support fragile suppliers.

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Likewise in India Ratan Tata had donated INR 1500 Crores to the government, being the biggest industrialist he donated such big amount of money in this pandemics and he even stated that if the country needs more help I might sell my company or everything I had earned till yet for the country, some of the bug donations had been done by Actor Akshay Kumar who donated an amount of Rs. 35 Crores to the government of India. Reliance industries donated INR 500 Crores to the PM cares meant for Covid crisis. SCR money can be helpful in ongoing pandemic situation of Covid-19, to run community kitchens, provide shelters to homeless and stranded migrants labourer example: to support to civil society responding to food relief. It can prevent deterioration in gains made in Area of child rights, girl rights for example: lots of children may be pushed into child labour, malnutrition may rise, under age marriage of girls given more poverty.

CSR is not philanthropy, Rather responsibility towards society. A way to achieve balance of Economic, Social and Environmental imperatives. As per Companies act 2013, 2% of profit should go for certain CSR related activities such as Environmental protection, Girl education, Nahi Kali(Mahindra).

CSR (Corporate social responsibility) comes in 2007 in India & in USA it truly began in 1971. In India company act it is mandatory provision under section 135 of company act 2013, which came into effect from 01.04.2014 on the other hand in USA CSR (Corporate social responsibility) is type of soft law which do not requires a statue or regulation that means hard law but is nonetheless seen as obligatory by most corporations because of consumer expectations and internal norms. Principles of building the legal shell specifically in interpreted rights, duties, and causation, are mainly worldwide embraced. Thus, corporates must have CSR schemes that are “litigation ready” when it requires human rights because the UNGPs would be informed about the content of sensible corporate practices, which had censorious implications for multinational civil and commercial disputes. That is to say, UNGPs (The United Nations Guiding Principles) make multinational tort liability of corporations to 3rd parties.

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CSR (Corporate social responsibility) is basically bringing consciousness about society, surroundings, environment and that is where the CSR brings in the stake holder perspective to think about society & have those consideration in the mind of businessmen basically when they are discussing strategy. [1]The capitalists should act as a trustees (not owners) of their property and conduct themselves in a social responsible way. This concept actually measures financial, social & environmental performance of the corporation. [2]The Business Responsibility Reporting (BRR) are mandated for requirement of top 100 (from 500 to now top 1000) lasted entities in their annual report. In todays world 90% of CEOs claims that Sustainability is key to success. Research shows that if you have good CSR programme it will increase employee commitment, customer satisfaction, reduce risk and even get better access to finance. The good example of irresponsibility is Volkswagen case, Volkswagen is known to be the most responsible companies top-rated on different screens and still it turned out that they had tampered with their emission technology and that of course led to major drop in their brand value but its also read to a drop in their share prices of the companies.

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Top management of corporate sector is not going to do the Job but they have to endorse the activities on the CSR so the first thing then is to put together a group of company across the company 5 to 10 people from different department and they together are going to find out and discuss what this companies main social impact or the main footprints of the company, a good check list for that is the sustainable development with 5 goals the SDGs of course those 5 goals are relevant for individual companies depends upon which secretary they’re in so first will be MAP lets say companies and the industry of producing clothing in developing countries well probably decent work and economic growth is most relevant or if company is in oil industry then climate action issues is relevant and if the company is in fish farming well then it would be life below water is more important. When the goals are identified a concrete plan with concrete target and how to reach the target must be set up when that is ready we move on to the second step that is TEST take the draft plan presented to key stakeholders ask for their input revise accordingly who are stakeholders like customers, suppliers other employees, non governmental organisation, environmental organisation these are ones to to come with feedback and then revise  the plan according to that then we’re ready for the third step which is LAUNCH the launch is about making the rest of the company aware of the plan and let them buy into tithe day-to-day work how do you do that, put it on a company website or newsletter or monitors be creative. The fourth step is the IMPLEMENTATION have you had to follow up the plan, are we reaching the targets are we not why there will be unexpected happenings these are great learning point. Now the last and fifth step that is REPORTING the reporting is like accounting coming forward with what worked or what didn’t work and why, and, be open and be honest and transparent not only focused on what went went well but also the problems the challenges one might think that companies with big CSR report are doing a lot of things are being good companies but actually its not true its the opposite way around companies with the big report writing a lot those are the ones who have been criticised and have to explain that they have changed and convinced the reader the CSR reports are good source of finding out to which extent the CSR work is actually integrated into the company.

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Working practices of the corporate company have been totally changed since this pandemic of Covid-19 and turn corporate company to work on different platforms, for example, to work from home is mandatory these days as offices are still closed for time being for the safety of their own. This measure had been taken worldwide whether it’s India or the USA or any other country as this the social responsibility of corporate sectors to make sure that people are safe during these pandemics and they won’t suffer any monetary problems.

The legal department of the corporate sectors is still analyzing and evaluating the effects of this pandemic on contractual relationships of all sorts, as well as the consequences of Covid-19 on contractual relationships of all sorts, also as possible mitigating strategies which will have to be compelled to be implemented. In particular, the performance of contracts that one can reasonably expect to be impacted by the spread of coronavirus (a sizable amount of contracts of all kinds, indeed) would require deep analysis to verify whether or not they include the act of God clauses that would potentially and ultimately excuse performance from any (or both) parties within the event an unforeseen scenario. In this scenario, the legal departments will play a crucial role in this pandemic situation where they had to make a strategy for the corporate sectors so that it favors the corporate sector rather than affecting them. Even the Boards of the company had to come forward with strong leadership as they had several commitments towards their company. We are now seeing great samples of true leadership that goes beyond direct responsibilities within companies to a way larger scale: Leading initiatives that, because of the large power of globalization and therefore the scale of social and professional networks, have a really powerful reach. According to section 135 of the companies act, CSR spend is mandatory for every company beyond a financial threshold, Net worth of INR 500 Crores or Turnover of INR 1000 Crores or Net Profit of INR 5 Crores, required to spend 2 % of average net profit of last 3 years on CSR projects, reports made under clause (0) of sub-section (3) of section 134 specify the reasons for spending the amount. On the other hand in the USA, there are corporate foundations in the companies where spending money on CSR is also mandatory, recently [3]500 firms spend around $20 billion a year on CSR activities.

Section 135 of the companies act, the compliance of constitution of the CSR committee of the board 3 or more directors, at least 1 independent director, CSR committee shall formulate and recommend CSR policy (preference to be given to local), recommend CSR activities and expenditure on the same, monitor CSR policy from time to time, with this the responsibility of The Board as follows –

  1. Disclose composition of CSR committee.
  2. Approve CSR policy and report.
  3. Ensure SCR activities and undertaken by company
  4. Ensure spending on CSR activities and reporting of non-compliance.

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Now, on the other hand, the same business laws are there in the USA where it is mandatory for every company to spend on CSR and The Boards of the companies had to take measurable steps to ensure their responsibilities.

 Like we talk about today’s time then one of the most crucial steps taken under CSR in all the companies is that they had to make sure that all the departments including there buildings must be sanitized properly not only in India or USA but this is world-wide like in India it is set up by the central government for the promotion of sanitation, likewise in the whole world including the USA and other countries it is mandatory that to sanitized every building and keep sanitizer bottles or packs for employees so that they can be safe during this pandemic.

On other hand in India work from home is a new format which is not as successful as where employees work as in the office premises but yes during this pandemic this rule has to be followed by every corporate sector same as in the USA this step of work from home has been taken up and been followed up there also for the care of employees.

In India promoting education, including special education and employment vocation skills especially among children, women, elderly, and, the differently ables and livelihood enhancement projects.

On 23.02.2020 in India funds may be spent for various activities related to COVID 19 under item no. (i) and (xii) of Schedule VII relating to the promotion of health care, including preventive health care and sanitation, and, disaster management (including state Disaster Management Fund).

28.03.2020: contribution to PM cares fund shall qualify as CSR expenditure under item (vii) of Schedule VII.

[4]The SALARY of the employees during the lock-down and payment to casual/contractual workers – not CSR, any ex-gratia payment is made to temporary/ casual workers/ daily wage workers over and above the disbursement of wages. Specifically to fight COVID-19, the same shall be admissible towards CSR expenditure as a one-time exception provided there is an explicit declaration to that effect by the Board of the company, which is duly certified by the statutory auditor.

On the other hand in the USA, there are cuts of salaries during lockdown even the former president didn’t do much about it but Newly appointed president Biden said that corporate sectors must pay the salary to there employees in this pandemic situation as it is difficult not only for corporate sectors but people of the country who are working in the corporate sectors are also suffering a lot in this Pandemic situation even the Government is also facing monetary problems in the whole world.

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CSR can be good for a company, first it can builds good image, responsible behaviour which gives competitive advantage, can act as a marketing strategy. CSR can be for government by helps government in achieving its social objectives welfarism concept.

BENEFITS TO CSR, Lack of awareness will be resolved, lack of interest of local community in participation of CSR activities will be tackled, an opportunity to build trust and synergy between CSR, NGO and Local bodies. All these will be a precursor in institution of CSR in India as well as in USA.

[1] Gandhis Concept of “Trusteeship”

[2] SEBI has, vide circular dated August 13, 2012

[3] Fortune Global, https://hbr.org/2018/01/stop-talking-about-how-csr-helps-your-bottom-line#:~:text=Today%2C%20Fortune%20Global%20500%20firms,for%20attracting%20and%20motivating%20employees

[4] Schedule VII Companies act COVID NOTIFICATION

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Analysis of the Legal aspects of Mining in Nigeria

By: Sree Kuttan

Introduction

Nigeria is regarded as a country endowed with abundant natural mineral resources such as iron, lead-zinc, tin, tungsten, tantalum, gold, manganese, and nickel. In Nigeria, there are a number of laws applicable to the mining sector such as the Constitution of the Federal Republic of Nigeria 1999 (as amended), Land Use Act, Laws of the Federation 2004 (the Land Use Act), Nigerian Minerals and Mining Act, 2007 (the Mining Act), Nigerian Minerals and Mining Regulations 2011 (the Mining Regulations). The Act and the regulations have since introduced a better regulated sector and provided an attractive investment climate for foreign investors seeking to invest in the mining sector.

The Mining Act

The Mining Act is Nigeria’s major legislation governing the mining sector. It regulates all aspects of the exploration and exploitation of solid minerals in Nigeria. The Mining Act also provides that all lands in which minerals have been found in commercial quantities shall be acquired by the Federal Government in accordance with the Land Use Act.

The Mining Regulations

The Mining Regulations are the subsidiary legislation issued under the Mining Act. The Mining Act and the Mining Regulations are administered by the Ministry of Mines and Steel and the Mining Cadastre Office.

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The Land Use Act

The Land Use Act is Nigeria’s legislation governing land acquisition and ownership. However, the use of land for mining purposes is considered as constituting an overriding public interest. , the Mining Act also provides for contractual arrangements applicable to the lawful use of any land for mining purposes.

Licences and Permits Applicable to the Mining Sector

Under the Mining Act, a person is authorized to search for and exploit mineral resources when he or she has obtained a mineral title to do so. The different mineral titles available under the Act are: Reconnaissance Permit, Exploration Licence, Small-Scale Mining Lease, Mining Lease, Quarry Lease and Water Use Permit.  It is an offence under the Act to undertake or be involved in the search or exploitation of mineral resources without having the requisite mineral title.

  • Reconnaissance Permit:

This permit allows, on a non-exclusive basis, reconnaissance activities on all land within Nigeria that is available for mining operations. In Nigeria, a reconnaissance permit allows the holder of the permit to only obtain access into, enter or fly over any land within Nigeria to search for mineral resources on a non-exclusive basis and to remove surface samples in small quantities. A reconnaissance permit is not transferrable or assignable to a third party under any circumstance whatsoever16 and where the holder of the permit becomes mentally incapacitated or diseased, the permit shall be revoked.

  • Exploration Licence:

An exploration licence gives its holder the exclusive right to conduct exploration activities within the area permitted. In order to be qualified to apply for an exploration licence, an applicant has to be either a company that has been duly incorporated under Nigerian law or a mining co-operative or the holder of a reconnaissance permit already granted in respect of the area which is the subject of the exploration permit application. In Nigeria, an exploration licence is granted for an initial period of three (3) years and may be renewed for two further periods of two years.

  • Small-Scale Mining Lease:

Small-scale mining is defined under the Mining Act as artisanal, alluvial and other forms of mining operations involving the use of low-level technology or application of methods not requiring substantial expenditure for the conduct of mining operations within a small-scale. A small-scale mining lease shall not be granted in an area which is the subject of an exploration licence, small-scale mining lease, mining lease, quarry lease, or water use permit or any area close to mining operations.

  • Mining Lease:

A mining lease grants the holder of the mineral title the right to obtain access and enter the mining lease area to carry out exclusive exploration and exploitation of mineral resources activities. In Nigeria, only a corporate body duly incorporated under the Companies and Allied Matters Act or any other legal entity which has demonstrated that a commercial quantity of mineral resources exists in an area is qualified to apply for a mining lease. Mining leases are required to be granted or denied by the Minister within 45 days of application. A mining lease is valid for a period of twenty-five years and renewable every twenty-five years and shall not be granted in respect of any area within an exploration licence area or a small-scale mining area except to the holder of the exploration licence or small-scale mining lease covering such area.

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  • Quarry Lease:

Quarry leases in Nigeria are granted in respect of all naturally occurring quarriable minerals. A person shall be ineligible to apply for a quarry lease if it is shown that any of the members or directors of the applicant or a shareholding holding a controlling share of the applicant has been convicted of a felony or an offence under the Mining Act or the Mining Regulations.

  • Water Use Permit:

Only the holder of or an applicant for an exploration licence, small scale mining lease, mining lease, or quarry lease is qualified to apply for a water use permit under the Mining Act and the Mining Regulations. The validity of a water use permit is for as long as the small-scale mining lease, mining lease, quarry lease or exploration licence for which use it was granted and shall expire upon revocation or expiry of the small-scale mining lease, mining lease, quarry lease or exploration licence for which use it was granted.

Fiscal Incentives of the Nigerian Mining Sector

Of paramount importance to any mining investor are the fiscal regime and tax incentives of the host country. Under Nigerian mining laws, a mining project is entitled to enjoy various tax advantages, incentives and benefits as follows:

  • In determining total profits, a licence holder is entitled to deduct from his assessable profits Capital allowance of 95% of qualifying expenditure incurred in the year in which the investment was made on all certified exploration, development and processing expenditure including feasibility studies, sample assaying costs, and infrastructure costs.
  • The amount of any loss incurred by a licence holder shall be deducted as far as is possible from the assessable profits of the first year of assessment and thereafter in the year which the loss was incurred and in so far as it cannot be so made, then from such amounts of such assessable profits of the next year of assessment and so on up to a limit of four years after which the period any unregistered loss shall lapse.
  • Exemption from customs and import duties on approved plants and machinery, equipment and accessories imported specifically and exclusively for mining operations.
  • Tax holiday for the first 3 years of operation which period may be extended for another 2 years. The Tax relief begins to accrue on the commencement of operations. This is at odds with CITA which only grants tax holiday of 3 years without any option of extension.
  • Expatriate Quota and resident permit in respect of expatriate quota
  • Personal remittance quota to expatriate personnel for the transfer of foreign currency out of Nigeria.
  • Free transferability of dividends or profits;, payments in respect of servicing a certified foreign loan; and foreign capital in the event of sale or liquidation of mining operations in any convertible currency.
  • The Central Bank of Nigeria(CBN) may permit a title holder who earns foreign exchange from the sale of its minerals to retain in a foreign exchange domiciliary account a portion of his earnings for use in acquiring spare parts and other inputs required for mining operations which would otherwise not be readily available without use of such earnings.
  • Grant of investment allowance of 10% on qualifying plant and machinery.
  • Tax deductible for environmental cost.
  • Tax deductible for pension funds for employees of mining companies.
  • Annual Capital Cost Indexation-unclaimed balance of capital cost shall be increased yearly by 5% for mines that start production within 5 years from the date of enactment of the Act.
  • Deferment of royalty payments on any minerals for a specific period on the approval of the Federal Executive Council.
  • The investor may also be entitled to claim an additional rural investment allowance on its infrastructure cost. This is however dependent on the location of the company and the type of infrastructure provided.

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Considerations for Mining Operations

Before the commencement of mining operations by a mineral titleholder, there are certain legal considerations that a person interested in mining business in Nigeria must take into cognizance such as lands excluded from mining operations, surface rent and compensation, outright ownership of mining land, annual service fees and royalties.

  • Lands Excluded from Mining Operations
  • Surface Rent and Compensation
  • Ownership of mining land
  • Annual Service Fees and Royalties

Incentives Applicable to Mineral title Holders

A mineral title holder under the Mining Act engaged in mining operations under the Act and the Regulations is entitled to certain benefits;

 

  • Extension Services for small-scale and artisanal mining
  • Capital Allowances
  • Exemption from Customs duty and Other Benefits
  • Permission to Retain and Use Foreign Exchange and Free Transferability of Foreign Exchange
  • Pioneer Status and Tax-Deductible Costs

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Factors Impeding Development of the Mining Sector

Given that the Nigerian legal and regulatory framework meets all the major considerations of a mining investor, it is difficult to understand why the survey conducted by the Fraser Institute ranks Nigeria so low and the World Bank’s forecast for mining investment in Nigeria between the years 2000 and 2020 is nil. This may not be unconnected with the following:

  1. Security: Majority of the naturally occurring minerals are located in the schist belt which covers an extensive part of Northern Nigeria where the present insurgency is being experienced. Security is one of the main risks to any mining investment as it has a bearing on the overall cost of the project. As the government improves the security situation in these parts of the country, mining juniors and TMC’s may begin to refocus their attention to Nigeria.
  2. Funding: There is a challenge of funding mining projects. Mining projects have long lead times and as such require long term capital which simply is lacking in Nigeria presently. Perhaps with the introduction of the single treasury account and limitation of focus on short term funds, banks may be forced to start providing longer term funding to sectors such as the mining sector.
  3. Infrastructure: The lack of adequate infrastructure is also a challenge to any mining investor. The mineral deposits in Nigeria are too distant to the ports for the export market and there is presently very little domestic use for the minerals presently being produced. The railway system is archaic and in need of a complete overhaul to be able to serve the sector. In the absence of a functional railway system, Nigeria won’t see any major mining investment in the immediate future. It is crucial to begin to look at various models of how the needed transportation infrastructure for mining activities can be provided. One model could be the use of Public Private Partnership to deliver multi-client/multiuser mining related rail infrastructure in Nigeria. The pension funds are also a veritable way of funding the infrastructure investment for the sector.
  4. Illegal Mining: Illegal mining contributes to about 60% of the mining activities in Nigeria. This is perhaps the biggest challenge to the mining sector. However, the loss of revenue is not the only by product of illegal mining as same also results in the degradation of the environment and loss of human life mainly from lead poisoning.
  5. Political and Economic Risk: Nigeria has witnessed 16 years of uninterrupted democratic rule and more recently the transition of power from a ruling party to an opposition party. This clearly signifies political stability to any foreign investor seeking to invest in the solid mineral sector. The ongoing devaluation of the Naira posses its own hindrance to investment but there are ways of addressing currency risks in mining projects and this includes currency hedging.

Recommendations for the Sector

There are a number of recommendations and these include:

  1. The urgent need to improve on the funding of the public mining institutions so as to ensure effective monitoring and regulation of mining activities.
  2. The spate of illegal mining must vastly reduce so as to ensure order and prevent environmental degradation and loss of life.
  3. The Federal Government must as a matter of urgency address the security situation in the northern region of Nigeria which is ore rich.
  4. Enforcement of the “use it or lose it principle” with respect to licences which are not utilised within a specific timeframe.
  5. Improved mining related transport infrastructure through Public Private Partnerships.
  6. Identify a specific set of minerals to promote through roadshows showcasing the potential of mining these minerals in Nigeria.
  7. Privatisation through competitive bidding of existing Federal Government mining properties as a means of kick stating the sector.

Conclusion

As Nigeria plans to take advantage of the inherent growth opportunities available in the morning sector and open the sector to private and foreign investment and investors, it is important for all players, new and existing players to be aware of the regulatory and commercial considerations for the mining sector in Nigeria. As being the largest economy in Africa, with a population of 170 million inhabitants to provide skilled and unskilled labour and a transparent legal and regulatory framework offering some of the best fiscal incentives in the global mining industry, offers attractive mining investment opportunities to the discerning investor.

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Copyright Licensing Agreement and the Clauses Covered Under It- An Analysis

By: Darshi Sanghvi

What is copyright licensing?

In India, copyright is known by and large as an ownership right offered by law to creators, for instance, of artistic work, cinematography, literature and sound recordings. In other words, it is a protection provided to creators of work in the form of an acknowledgement for their intellectual contribution. The primary objective of any copyright is to protect the interest of the creator, besides the dissemination of knowledge that is carried out. An often undiscovered fact is amidst other benefits; economic rights also enable a creator to reap economic benefits from his intellectual creations. As per the Copyright Act of 1957, there are different rights in place, pertaining to the nature of the work undertaken. It is further pertinent to note that it is the exclusive right of the owner to do or authorise doing any of the acts covered thereon.[1]

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The copyright framework permits not only the communication of work, but also its reproduction, translation and adaption. Thus, the owner of the copyright work is given the opportunity of generating wealth not just by exploiting it himself, but also by sharing it with the public at large for mutual benefits. This is where copyright assignment and licensing come into play.  A distinction may be drawn between licensing and assignment, in terms of the fact that through licensing, the licensee is granted rights on the basis of certain conditions, however their ownership is not vested in the licensee. On the other hand, in an assignment, the assignee is regarded as the owner of the interest assigned to him.

Through copyright licensing, the licensor grants a license to the licensee, thereby authorising the use of the said copyright by such a licensee. The licensee is thus provided with the adequate protection and spared from the claim of infringement unauthorised use that may be made by the licensor otherwise.

Furthermore, the term ‘Exclusive License’ is elaborated in the Copyright Act to comprise of licenses that confer, on the licensee or any other person duly authorised by him, any right pertaining to the copyright of the work, excluding all the other persons.[2]

In exchange of a consideration, a copyright owner may choose to transfer some or all of his rights to others for the purpose of seeking monetary benefits. A license may either be said to be exclusive, or non-exclusive.[3]

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What is a copyright licensing agreement?

In order to initiate licensing, a copyright owner enters into a contract, widely known as the Copyright Licensing Agreement. Through such a contract, the copyright owners permit another individual or organization to use their work in several ways, for instance:

  • For reprinting
  • For distribution
  • For using it over a specified period of time[4]

In a nutshell, it is an agreement that throws light on how, why, when and where a copyrighted work can be capable of being used.

Types of copyright licensing agreements

  • Voluntary License – The author, also known as the Copyright owner, is said to have exclusive rights with regard to his creative work and has the sole right to grant license in that respect. The Copyright Act 1957[5] provides that the owner of the copyright may grant the interest in his copyright through a license in writing, which must be signed by him or an agent duly authorised by him to do so. Such a license can be granted with respect to existing as well as future work. A voluntary license may be exclusive, non-exclusive, sole or implied.
  • Compulsory License[6]– As a part of the Berne Convention[7], India has taken a step towards the incorporation of a compulsory license under the Copyright Act 1957. The term “compulsory license” is used to mean a statutory license that provides an exclusive right to do an act without the prior permission of the copyright owner/ author. Section 31 covers the compulsory licensing of copyrighted work that is withheld from the public.

Important clauses to be included in Copyright Licensing Agreements

An agreement begins by stating the date and place of its execution and further proceeds towards identifying the contracting parties. This lays the foundation for the following clauses that are particular to the property or rights that are granted.

  • Recitals: This clause is considered essential for any form of agreement as it is used to provide a gist about the contracting parties. This clause sets forth the relationship of the parties up to the stage before which the agreement came into being. A well-drafted recital plays its part in clearly expounding the context of the agreement to any reader, thus enabling a person unknown to the agreement to comprehend it better. Nevertheless, it also clarifies the fact that the binding clauses of the agreement are to be included in the coming clauses and not the recital itself.
  • Definition: This clause is equivalent to a dictionary for the purpose of the agreement. It elucidates all the terms of immense importance to the agreement, which play an important role in determining the rights and obligations of the parties. Definitions can additionally be used for the purpose of restricting the scope of the agreement. A precise description of the terms like “licensed patents”, “use”, “royalty”, “revenue” etc. can be found within this clause.
  • Rights Grant/ Grant of license: This clause plays a significant role in enabling the parties to understand the extent to which the license extends. The Rights Grant clause irons out the significance of the rights granted by the Licensor to the Licensee. The said clause states several points like the “Exclusivity of the license”, “right to use”, “restrictions on use” and “limitations- geographical and political”. Most importantly, it acts as a guide by specifying “who gets what”. The clause clarifies that the Artist retains his right to reproduce his work and that the license remains with the artist and does not affect the ownership of the copyrighted work.
  • Indemnification: In the event of any litigation risk or loss arising on one party as a result of the act of another or due to the existence of any defect in the license granted or the ownership of the copyright, it is essential to discuss the specifics of who will be indemnified and who will be the indemnifier if such a risk comes true. In other words, this clause provides the right to the party suffering due to the act of another party to call upon him to indemnify the suffering party for any loss that may have incurred.
  • Consideration: Consideration forms an essential part of any contract, unless it is expressly mentioned otherwise. The consideration clause of a license agreement cites the amount of consideration that a licensee is required to pay to the licensor, in the form of royalties. The clause further sets out the method by which such royalties are to be calculated. According to most of the agreements, the royalties paid are based on the profit made by the licensee by exploiting the license. Besides such a royalty, the licensor is also entitled to demand a fixed license fee to be paid, which can be taken separately from the royalty. Both, the fee and the royalty depend on a number of factors, for instance, the use of work, the Artist’s reputation, the scope of the license, so on and so forth. The licensor also possesses the right to formulate a condition obligating the licensee to keep track of the sales made by him and to show the licensor such audit reports that shall be prepared by him.
  • Obligations of the Parties: Every party contracting under a license agreement has certain obligations towards each other which differ and are over and above the aforementioned clauses. These obligations involve making disclosures with respect to the information which is required to be known by both the licensor and licensee; in case the grant is of an exclusive license then the licensor agrees not to exploit the exclusivity granted to him thereunder; and may also contain a clause that obligates the licensee to exploit the copyrighted property in a manner that enables him to make the most of the license granted to him, much more so in case of exclusive license which exclusively grants him the license to exploit particular copyrighted work.

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  • Alterations and modifications: Alterations or modifications of any sort that may be made by the licensee must first be granted under the rights grant clause. If, upon granting any such right, modifications are made in the work, then the licensor might demand to be the owner of such property post the requisite improvement and shall then assign such improved property under another license with identical conditions as the previous agreement. Under certain circumstances, the licensee might seek to retain the ownership of the improved property, and then the licensor might obtain a license from the licensee for the purpose of including the modified part in his original work.
  • Term and termination: This clause lays down the period for which a license is granted to the licensee, the focus being on the date when it comes into force and the date on which it ceases to exist. Such a license possesses the scope of being renewed from time to time, subject to the conditions as specified under the agreement or at the will of parties. Term of the license is finalised by the concerned parties bearing in mind their respective benefits. Termination of an agreement is by and large based on two factors: at convenience and for cause. More often than not, parties don’t prefer granting the opposite party a right to terminate the contract at convenience as it may lead to a loss to the other party who might have invested a huge amount of money with a view of exploiting the licensee or the granted rights. One party is entitled to immediately terminate the agreement, if the other party does an act that is considered as a breach of any term of the agreement. This clause also puts out the consequences of termination of the license for any reason whatsoever. Nevertheless, in case of termination of the agreement at convenience, the party bringing about the termination of the agreement can, under obligation, be compelled to give a prior notice of certain period before such termination is implemented.
  • Dispute Resolution: In case of any dispute arising between the parties with regard to any breach of the agreement or any other reason pertaining to the license. Majority of the agreements elucidate the process to be followed in case of a conflict. The form of dispute resolution that must be opted for, can be decided at the discretion of the parties, which can be chosen from normal litigation, arbitration, mediation, and conciliation. The parties are at their will to decide the manner of dispute resolution and the law governing them.[8]

This is a non-exhaustive list of clauses essential to the agreement entered into between a copyright owner and the person seeking rights to reproduce or perform that copyrighted work. Copyright license agreement should be drafted, bearing in mind the protection of the rights of the Licensor as well as the Licensee. Furthermore, each clause must stipulate the rights, obligations, and limitations expressly, such that any future misunderstandings and misconceptions can be avoided on the part of the parties.

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[1] Section 14 of Copyright Act 1957

[2] Section 2(j) of Copyright Act 1957

[3] https://ssrana.in/ip-laws/copyright-law-india/copyright-licensing-in-india/

[4] https://vakilsearch.com/advice/copyrights-in-india-how-to-assign-and-license-a-copyright/

[5] Section 30 of Copyright Act 1957

[6] Section 31 of Copyright Act 1957

[7] Article 9(2) of Berne Convention

[8] https://www.gspkendra.com/2018/12/27/most-important-clauses-in-a-copyright-licensing-agreement

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E- Sports Player Contracts and the Clauses Covered Under It

By: Manohar Samal

  1. Introduction 

Electronic sports (e- sports) involves playing computer or other games for profit where fans view the gaming and place wagers depending upon the skills of the players indulged in such games.[1] Not only wagers but, e- sports generate revenues through live streaming of players as well.[2] Reportedly, 380 million people worldwide were indulged in watching some or other form of e- sports making it a billion dollar industry.[3] The growth and evolution of e- sports into a money- making industry has resulted in exploration of new possibilities in the legal field such as its operation with legal endorsements, intellectual property and contracts.[4]

Contract law plays an extremely central role in e- sports and contracts for teams, players, tournament leaders and leagues should be well- drafted in place. This is mainly because during the initial years of e- sports turning into a profitable industry, exploitation and late payment of consideration were common occurrences.[5] One of the most vital contracts in e- sports is the endorsement contract as many players have faced difficulties in such forms of contracts in the past.[6]

Albeit the fact that the e- sports sector has colossally grown within the past decade worldwide and in India, the regulatory system seems to be lackadaisical in this field.[7] India does not have any law on regulating e- sports and only a Private Member Bill titled Sports (Online Gaming and Prevention of Fraud) Bill has been introduced before the Lok Sabha till date.[8]

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  1. E- Sports Player Contracts and the Clauses Covered Under It 

Traditional sports have well- regulated systems with contractual stability.[9] However, the same thing cannot be said about e- sports. Since there is no principal legislation or effective regulation, contract based relationships govern the entire e- sports industry.[10] Therefore, it would not be wrong to infer that contract law plays a pivotal and colossal role in the e- sports industry. Due to the various difficulties faced by players in the past, it is important that certain contract clauses work in their favor and towards the interest of the e- sports game at large. This would naturally mean that e- sports player contracts will have to contain some indispensable content and clauses and these clauses have been enlisted below:[11]

  1. Definitions Clause- The definitions clause is an indispensable clause in any contract. This would also include e- sports player contracts since a definition clause helps in explaining the exact meaning of the terminology or nomenclature used in the contract which can result in reduced risk of future litigation in interpretation related matters as all ambiguities are eliminated after looking at the definitions clause.
  2. Player Services Clause- All the services which are going to be provided by the player have to be clearly specified in the e- sports player contract. This would include all services provided by the player in addition to participating and playing in competitions, leagues or tournaments such as social media promotion and creation and promotion of video content (vlogging). This clause would also have to cover the hours of engagement which is agreed upon by the player and the respective contractor.
  3. Player Obligations Clause- E- sports player contract needs to contain an exhaustive list of obligations which the player is expected to carry out. This would include details in respect of tournaments which the player will participate in, the teams which will accompany and instruct the player, the amount of promotion required to be done by the player in sponsor events, the apparel and accessories to be worn by the player and the hours of training in which the player is expected to indulge. The player obligations clause is pivotal because it results in clear indication of the players obligations preventing any form of exploitation.
  4. Player Restrictions Clause- The player restrictions clause is responsible for explicating the restrictions and limitations which the player has to adhere to. This clause includes factors and concomitants such as restriction from playing in tournaments without the team or the contractor’s permission, restriction to promote competitors’ or their sponsors and for specifying a code of conduct for players to observe during the tenure of the contract.
  5. Non- Disparagement Clause- A non- disparagement clause offers protection to teams and sponsors from defamatory remarks made by a player and is an indispensable part of an e- sports player contract.
  6. Remuneration and Allowances Clause- Details of the remuneration paid or going to be paid to the player has to be specified under this clause. Moreover, all benefits, allowances and bonuses arising in the course of the contract will also have to be specified under this clause.

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  1. Image Rights Clause- This clause covers a unique aspect known as image rights. An image right is the right associated with the player due to his or her skills which a team or the contractor can use during the course of contract.[12] Such image rights include name, appearance, voice, in- game avatar or gamer tag. This clause is paramount since it could lead to the player being additionally compensated or paid for allowing exploitation and utilisation of his or her image rights.
  2. Equipment Clause- The equipment going to be supplied, types and forms, restrictions and permissions to use and similar connected matters have to be covered under the equipment clause. This is mainly because the equipment has a great role to play in the player’s success while participating in a tournament or league or competition.
  3. Revenue Sharing Clause- The revenue sharing clauses contains facts about the amount of extra revenue which will be shared with the players from the sale of merchandise, sale of in- game items, revenue generated out of streaming and prize money earned. Since revenue sharing from additional sources has been a controversy leading to litigation and conflict amongst the team and the players, it is vital that this clause is drafted properly where clear specifications about percentage of revenue sharing is stipulated.
  4. Roster Management Clause- Roster management clause is a key clause in an e- sports player contract. This is mainly because roster management strategy of the team can directly affect a player’s career. Roster management is a process which involves strategising the use of player resources by the team.[13] Therefore, it would contain information such as players going to initiate playing during the tournament, league or competition and the number of substitute players. The time duration after which each substitute will be allowed to play is also covered under the roster management clause of an e- sports player contract.

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  1. Termination and Renewal Clause– The termination and renewal clause is an indispensable clause in an e- sports player contract. This clause contains aspects of compensation in case pre- termination of contract takes place and quantification of value of the remaining contract period of a player in proportion to the investments made by the contractor in such player. Post- termination obligations and duties are also covered under this clause such as deletion of data, return of equipment and non- disparagement. Non- compete and non- acceptance of any other team or contractor’s offer is also covered under this clause. Renewal related aspects are also covered under this clause. This is an important clause to keep the player’s conduct in check and also helps the player in understanding his or her restrictions. Such clauses are also known as buyout clauses.[14]
  2. Loans Clause- Unlike the common meaning assigned to the term “loan”, in an e- sports contract, loans are not even remotely related to bank loans and instead refer to loaning of members to other teams. It may arise that teams may enter into arrangements for exchange and loaning of players. This is why it is important that the loans clause is drafted properly so that any form of legal dispute between teams does not arise. The loans clause contains information such as the duration of loans, functions to be performed by the loaned player, restrictions and permissions to the loanee team and other assignment details.
  3. Governing Law and Disputes Resolution Clause- The governing law and disputes resolution clause affirms the jurisdiction whose law will govern the contract[15] and the court, tribunal or forum which will be preferred in case any sort of dispute arises between the team, sponsors or players. The location of such preferred court, tribunal or forum is also specified under the governing law and disputes resolution clause.
  1. Confidentiality Clause- The confidentiality clause is a pivotal clause in any contract. Similarly, confidentiality clauses have significance in e- sports player contracts as well. This is because aspects such as team plans, resources and strategy are delicate information which could lead to the success or loss of teams in e- sports. Therefore, it is important to protect it through a confidentiality or non- disclosure clause. The scope of confidentiality, permissible disclosure and related aspects are covered under the confidentiality clause of an e- sports player contract.

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  1. Conclusion

 Hence, the above discussions pristinely explicate the role of an e- sports player contract in the smooth conduct and success of e- sports games along with showcasing the clauses which are covered under such forms of contract.

[1] USC Gould School of Law. “eSPorts Law Growth”. USC Gould Online Blog. (2020). [online]. [last accessed on 15 August 2020]. Available from: <https://onlinellm.usc.edu/blog/esports-law-growth/>.

[2] Willingham, AJ. “What is eSports? A Look at an Expensive Billion Dollar Industry”. CNN Edition. (27 August 2018). [online]. [last accessed on 15 August 2020]. Available from: <https://edition.cnn.com/2018/08/27/us/esports-what-is-video-game-professional-league-madden-trnd/index.html>.

[3] Ibid.

[4] Ibid 1.

[5] Ibid 1.

[6] Ibid 1.

[7] Verma, Bhumesh and Srivastava Stuti. “Regulating E- Sports- An Opportunity and a Challenge”. RGNUL Student Research Review. (05 July 2019). [online]. [last accessed on 15 August 2020]. Available from: <http://rsrr.in/2019/07/05/regulating-e-sports-an-opportunity-and-a-challenge/>.

[8] Ibid.

[9] Rastogi, Anirudh and Ranjit, Vishakh. “E- Sports Player Contracts: Common Clauses and Potential Legal Issues in India”. Mondaq. (18 June 2020). [online]. [last accessed on 15 August 2020]. Available from: <https://www.mondaq.com/india/gaming/955392/e-sports-player-contracts-common-clauses-and-potential-legal-issues-in-india>.

[10] Ibid.

[11] Ibid.

[12] Vrey, Rogier and Wilms, Tim. “eSports and Image Rights”. CMS Law. (17 August 2017). [online]. [last accessed on 15 August 2020]. Available from: <https://cms.law/en/nld/publication/esports-and-image-rights>.

[13] Roundhill Investments. “E- Sports Glossary”. Roundhill Investments. (2020). [online]. [last accessed on 15 August 2020]. Available from: <https://www.roundhillinvestments.com/esports-glossary>.

[14] Lewin, Pete. “Why Every Esports PLayer Needs a Contract”. The ESports Observer. (21 November 2016). [online] [last accessed on 15 August 2020]. Available from: <https://esportsobserver.com/every-esports-player-needs-contract/>.  

[15] Contractbook. “Electronic Sports (eSports) Player Contract (EU)”. Contractbook. (2020). [online]. [last accessed on 15 August 2020]. Available from: <https://contractbook.com/templates/electronic-sports-esports-player-information-eu>.

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Digital Forensics and Law Enforcement

By: Prabha Devi Ganesan

INTRODUCTION

Digital Forensics is also defined as the science of identifying, preserving, analyzing and reporting of any evidence stored in the digital media like computer, network, server and mobile device. The documents of the evidence which are collected from the storage media computer system or any digital device can be used as evidence in the court. Before performing a forensic investigation a digital forensic examiner must understand various concepts in forensic.

People who can involve at the time of investigation are

  1. First responder
  2. Forensic investigators
  3. Court expert witness
  4. Law enforcement personnel

Process of Digital Forensics

  1. Identification -The first process of digital forensic is that what kind of evidence is present and also identifying the format and finding out where it is stored in the computer or mobile device.
  2. Preservation – It means that all the data is isolated, preserved and secured from using the digital device.
  3. Analysis – Based on the evidence found the fragments of data are reconstructed and the conclusion is being drawn as a conclusion. It also tells that how was it taken place.
  4. Reporting – It is like reconstructing all the crime scene and reviewing it with proper photograph, sketching and mapping the crime scene
  5. Presentation – This is the last process and all the above process are being summarized in this process and explained and put to a conclusion. The terms should be written in a abstracted terminologies

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Principles of digital evidence can be gathered digitally from the messages that are sent via phone, email internal history, computer files, images and instant messages. It can also be from the sources like desktop computers, laptops, mobile devices and cloud.

Main objectives

It helps to find the identity of the suspect or the culprit. Reconstructing the procedures at the crime scene may help to ensure that digital evidence which is obtained is not being altered or corrupted. It also helps to identify the evidence at short period of time and also gives overview of any malicious activity involved. It also helps to find the motive behind the crime scene. Process of computer forensic report gives a complete documentation on the investigation process. All the evidence is preserved by following chain of custody.

In case of confiscating a computer, expert forensic examiner must be called. The expert is called to ensure that any criminal actions doesn’t get lost or damaged if the computer is switched off. Pictures of the data that is currently being displayed on the screen and when the computer system is taken into custody when the server system is off because when the server system is off, the data saved can be damaged or disrupted from the services provided to the customers. As soon as the mobile is being confiscated it must be switched off and battery must be removed it is to make sure that the recent call information and cell tower remains unchanged. Once if it is off we shouldn’t turn it on because it may change the information on the device. A remote command can be sent without the knowledge of the investigator if the attacker gets to know about the mobile device is on. The mobile must be kept off because there are many other chances where it can be switch on easily. All the evidence which is collected is kept in FARADAY BAGS or other materials used when isolating a mobile device.  We should turn on flight mode. Turn off WIFI. Turn off Bluetooth. NFC or other communications system must be off. To prevent static electricity it can be kept in a material where there is no passage of electric current like paper bag, paper made out if cardboard and any envelope made up of paper.

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LAW ENFORCEMENT

Computer based evidence have common in court proceedings and also it consists of many important information for computer for intelligence than the law enforcement. There is much enforcement of techniques that law enforcement is not being known. Digital forensics is involved in the commercial organizations   in case of any disputes regarding the employment, wrong or fraud investigation and intellectual property theft bankruptcy etc.

CASE LAW 1:  (CREDIT CARD FRAUD)

STATE OF TAMILNADU VS THE MANAGER OF BPO ORGANIZATIONS (BUSINESS PROCESS OUTSOURCING)

FACTS OF CASE: The manager with the fraud control unit of BPO filed a complaint stating that two of his employees has conspired with the credit card holder and manipulated the credit card limit and as a result they cheated the company of INR 0.72 million. After the investigation they have seized six mobile phones, imported wrist watches, jewelers, credit cards and leather accessories all worth of INR0.3 million and cash INR 25000. They also informed the company of the security lapses in their software so that cases like this could not be repeated in the future. This case has won the second runner-up position for India Cyber Cop Award for its investigating. It was also stated that the case was remarkable by the investigating team of the business process and its use in collecting digital evidence.

CASE LAW 2: (BLACKMAILING)

STATE OF MAHARASTRA VS THE NRI (NON-RESIDENT INDIAN)

FACTS OF THE CASE: the accused was a NRI was working in Dubai she posed to a young girl living in Kolkata to enter into Han email correspondence. The accused started corresponding with the complainant using different email IDs with different female names which made the complainant believe that he was corresponding with different girls. Later on the accused asked for money and gifts and also sexual favors from the girls whom he was corresponding with. The accused started blackmailing the complainant referring to the email exchanges and she was made to believe that one of the girl committed suicide and sent fake copies of high court of Calcutta he also paid the bribe for the officials who supposedly investigating and compensate the family. This case won the first runner-up position India Cyber Cop Award for its investigating

Coming to the network forensics it involves HEX CODES AND ASCII CODES

ASCII CODES – AMERICAN STANDARD CODE FOR INFORMATION INETRCHANGE

When we take forensics it is also important to know about the number system fundamental. It is for the understanding the machine. There are 4 types they are binary, octal, decimal and hexadecimal

Binary number

Base -2

Symbols- (1-0)

Octal number

Base – 8

Digits – (0-7)

Decimal number

Base -10

Standard number is always 10

Hexadecimal number

Base – 16

Digits – (0-9)

Characters – A to f

OFFSET – It indicates the distance between the starting or beginning of the object and a given element or point with the same object.

FILE SYSTEM FORENSICS

The Identification, collection and analysis of digital evidence from different types of storage media is known as FILE SYSTEM FORENSICS. There are many concepts that relates to the file system

 

Firstly,

Hard disk – data can be hidden on the maintenance track or it can be protected or preserved in a protected area on the hard disk which is also known as evidence collection tool

File allocation table (FAT) and Master File table (MFT) in New Technology File System (NTFS) are to keep a track of files present in the storage media

Deleted files are removed from the file system table even though it looks like it has been deleted from the hard disk and looks like it doesn’t appear in the hard disk anymore and the clusters which are being deleted allows the other files to save or store data. There are different ways to recover the data using certain techniques we can use hex format   when we are using hex format we should start from the starting or beginning and end of the file. We should copy it in a text file. After saving it in a text file it has to be saved in an appropriate file extension.

PARTITION TABLE

It is the Master boot record. It enables a computer system to know how the hard drive is being organized particular partition are being erased but still it is being stored in the hard drive.

 

SLACK SPACE

The data is hidden in a random data is called ram slack found left over at the end of the volume. If the data are being deleted and if the clusters are not being stored it can be used in to store the data, and also the data which is deleted can be restored. It is mainly to hide the data in the storage media in a computer.

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FREE SPACE

The space which is being created are being obtained after the deletion of the file which is been deleted from the original partition is called free space

FAKED BAD CLUSTERS

The data can also be stored in cluster that are named as bad and master file table which is names as badclus contains the information about the bad clusters present in NTFS file system. Size of file system is equivalent to the size of the volume. It is used to hide the size of the data stored on volume by a suspect

FAT 32 – 1996

It is mainly used in DOS and windows operating system before windows XP. 32 in the FAT32 represent the 32 bit number to depict cluster value. It accommodates 2^32. Newer hard drive don’t use FAT32

It gives a idea about where a particular file is stored it is also considered to be very simple when compared to NTFS file system.

NTFS

It’s a newer file system than FAT32

It is being used in Window NT & 2006

It has 512 byte record called boot record

It is used to read the information regarding the partition present on the file system and other relevant information that is used by the operating system to load properly

CONCLUSION

Digital forensic examination of electronic system has end up in a great success in the analysis of cyber and computer assisted crime and also it has equivalent importance on the appropriate incident management capabilities to handle misuse of systems.

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Analysis of Marketing Strategies of Luxury Brand

By: Bushra Sarwar

What is a luxury brand?

The brand is the identity of a product which get associated with the customer. Branding is like the positioning of the product in the mind of the consumer. As per marketing management professor, Kotler, brands are designed by companies in such a way so that consumer can relate it or get associated with it.

As per the Economic theory, luxury brands are those brands whose demands increase with the rise in income of the consumer. Luxury brands are in contrast to the necessity of goods. So, the need of luxury brand is proportionally related to payment of the consumer. They are mostly status symbol products and catered to classy people. Luxury brands are targeted to high-class income group people.

Sometimes, luxury brands are equal to superior products. The essence of luxury goods is that they have high demand elasticity of sales, which suggests that they can profusely partake in the buying of luxury goods as individuals become bounteous & wealthier. However, this also means that if there is a reduction in consumer income, then demand will also decrease.

First and foremost, a brand-driven industry is the luxury industry. People purchase luxury products and services because they trust the brand and love it. Premium products and services are guided by their brand perception and success rather than any other group.

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How companies build luxury brands:

How do businesses build profitable brands? How do they make those products resonate through time and space with customers? What are the main success factors that cause the global brand environment to be dominated by some brands? These questions come into the mind of the CEO of the company and brand manager all around the world.  Develop a brand is not a one day or one-time affair. It is a long-term process to develop the image of a product in the mind of consumers. The company needs specific marketing and branding plan to increase brand outreach.

Source: Author’s Creation

Figure 1 Process of building Luxury Brands

Figure 1 presents the process of creating luxury brands. Identification of niche segment is the most critical steps in the process of building brands. For different products, the company should adopt different differentiation strategies. Develop the symbol for creating value in the brands. The brand creates exclusivity feature to make a difference among other brands. These all part together position the image of the brand in the mind of the customer. The above component will help brand managers to create luxury brands.

List of top 10 popular luxury brands

Source: branddirectory.com

What are marketing strategies?

The long-term preparation of corporate targets that the organisation aims to accomplish is a Marketing Strategy/Technique. It is necessary to choose specific measures to consolidate the credibility of goods and services or increase market sales to achieve these objectives. To identify the target market and to be able to keep customers loyal to the organisation to improve the positioning of the company, it is necessary to use opportunities.

To achieve positioning among customers and satisfy consumer and organisational relationship loyalty, it is essential to identify how do you want to place or position the product/service in the market. It is the method of creating sales opportunities, also of communicating and setting the product or service, and of translating the organisational lines that allow the correct channels to reach a target market.

Why does Company need marketing strategies?

Figure 3 Why company needs marketing strategies?

Source: Author’ created

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Marketing strategies adopted by luxury brands:

As per 2014 Mckinsey report, digital platform influences the 45% sale of luxury products. Luxury brands prefer to do advertising through print and electronic media. Nowadays, shoppers spent most of its time on online shopping, so luxury brands are coming on a digital platform to promote their products. Taylor (2020) suggested digital marketing strategies for luxury brands:

Analysis of marketing strategies

Michael porter defined four kind of generic strategies to create competitive advantage.

  • Cost leadership
  • Cost focus
  • Differentiation Leadership
  • Differentiation Focus

The Cost Leadership Approach focuses on minimising the cost of providing a customer’s goods or services, to become cost-efficient and add value to your shareholder’s wealth.

Under differentiation strategy, instead of focusing on the most part, brands differentiated their products from competitors. Under which business houses differentiate their products in terms of design, comfort, quality, and value-added features. As per Oh and Kim (2011), most brands prefer to use differentiation marketing strategy to create a difference in the market. Oh, et al., (2011) conducted this study in Asian countries (Japan, China and South Korea) and chose Louise Vuitton brand to study marketing strategies. The author found three critical factors which create Louise Vuitton as a brand: innovation, differentiation and customer-centric advertising.

Cost focus strategy focuses on cost leadership to focus on a niche market. Cost leadership strategy does not work on luxury products. Any strategy based on low costing would not work in fashion brands. Differentiation focus is the part of the differentiation strategy, which is used by the luxury brands.

PEST and SWOT Analysis:

  • PEST stands for political, economical, social and technological factor analysis.
  • SWOT stands for strength, weakness, opportunity and threat analysis.

SWOT & PEST tests are two approaches through which businesses plan ahead by carrying out research. Such variables are primary determinants of strategic planning. Businesses may fail to achieve desired objectives without SWOT and PEST analysis.

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Marketing strategies of famous brands:

Apple’s Brand:

Apple follows a straightforward brand strategy.  As their tagline says: Think different, Apple think differently at every stage of the product (product preparation to launching). Apple does not merely sell a phone or tablet; they simply sell a lifestyle to its luxury customers. Apple’s brand marketing makes people realize that they need an apple product to enrich their life with quality products and profitable experience.

Nike’s Brand:

Nike creates a strategy by knitting the story of a brand. Nike takes this opportunity to make a possible story around its every product to start the ideas, which fascinate the customers.

Adding a storytelling element to your brand or presenting the meaning of your business storey to your customers adds a human element to your organisation and can be a perfect marketing strategy for you.

McDonald Brand:

McDonald is not a new name in the market; it is recognized worldwide. Marketing strategy of McDonald is to maintain consistency.

How did McDonald’s build a name so distinguishable? Well, for over 60 years, they have kept their brand name and product consistent while making thoughtful and on-brand enhancements. Their logo has remained nearly identical, and their marketing taglines have relentlessly endorsed the same message: we make you happy.

Conclusion:

This write-up talks about the analysis of the marketing strategies of luxury brands. The article starts with the introduction of luxury brands and how companies are creating luxury brands by adopting differentiation strategies and top 10 brands based on brand value globally. It also provides an understanding of marketing strategies and why luxury brands needed marketing strategies and what marketing strategies followed by brands.

This article also analysed the Michael porter competitive advantage strategies and found the luxurious brands follow differentiation strategy. PEST and SWOT analysis are the two essential techniques followed by companies to achieve desired objectives. Finally write up concluded by comparing the marketing strategies followed by famous brands: Apple, Nike and McDonalds.

 

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References:

Top 50 luxury brands 2020. Retrieved by https://brandirectory.com/rankings/luxury-and-premium/table

https://www.toolshero.com/marketing/marketing-strategy/

How to build luxury brands. https://martinroll.com/resources/articles/strategy/five-steps-to-build-a-luxury-brand/

Oh, S., & Kim, J. (2011). Analysis of the Marketing Strategy of a Luxury Brand and its Success in Selected Asian Countries. International Journal of Interdisciplinary Social Sciences, 6(1).

Taylor, M. (2020). 10 Marketing Strategies For Luxury Brands That Deliver Results. Retrieved from https://www.ventureharbour.com/luxury-brand-digital-marketing/

 

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Supply Chain Management in Pharmaceutical Industry

By: Bushra Sarwar

Introduction:

What is Supply Chain Management?

Supply chain management (SCM) is the successful management of supply chain operations to gain competitive advantages and customer satisfaction. It reflects a concerted attempt by supply chain organisations to build and manage supply chains in the most reliable and possible profitable ways (Kapoor, Vyas & Dadarwal, 2018). Or

SCM is the handling of a good or service’s entire manufacturing flow, starting from the raw components all the way to providing the finished product to the customer.  A business establishes a network of suppliers that transfer the commodity from raw material suppliers to those organizations that directly communicate with customers.

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Core Concept of Supply Chain Management:

  1. Involvement of multiple organizations to transfer the product from origination point to end customer.
  2. Most organizations are restricted to their own activities which are happening inside the organization related to SCM, while few businesses understood the managed activities of supply chain for delivering the product to end user.

Flow in Supply Chain Management:

  • Physical Flow
  • Information flow

Physical flow is the most seeable part of SCM, which involve movement and transfer of goods from one place to another place.

Information flow involves the coordination of daily information about transfer of goods among various members of supply chain.

Working of Supply Chain Management:

Figure 1 Working of Supply Chain Management

Source: IBM

Five C’s of Supply Chain Management:

Figure 2 Five C’s of Supply Chain Management

Modern features of SCM are connectivity with the social media and modern disruptive technologies like IOT (Internet of things), AI (Artificial Intelligence), ML (Machine Learning) etc. collaboration among the supplier by using cloud computing to enable collaboration with many enterprises. Cyber-aware is the most important part to protect the supply chain from cyber attack and malicious malware. Controlling of supply chain through AI enabled platform to make it more automated. Usage of analytics for scale up the information in real time, which is comprehensive and fast. Predictive analytics help to predict future demand based on historical data.

Overview of Pharmaceutical Industry:
India’s presence in worldwide pharmaceuticals is prolific and rapidly expanding. It is the world’s largest supplier of generic drugs, having a 20 percent share of global supply by volume, and also supplies 62 percent of global vaccine demand. India secures 3rd position in production of medicines and14th place in terms of value. India is the only country outside of the USA with the highest number of US-FDA compliant pharmaceutical plants (more than 262, including Active Pharmaceutical Ingredients). More than 2000 WHO-GMP (World Health Organization-Good Manufacturing Practice) sanctioned pharma plant and 300 EDQM (European Directorate of Quality Medicines) plants in India.

60,000 generic brands are produced in India across 60 categories. India is home to more than 3000 companies with a fast and secure network of 10,500 manufacturing facilities (Invest India). Export in Pharmaceutical industry is growing with a growth of 10.72% every year. Cost of production is 33% lower in India in comparison to US market, which attracts most of the companies to open their pharma plants in India.

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Top 10 Pharmaceutical companies in India and worldwide:

Indian Companies Revenue (Billion US $) Global Companies Revenue (Billion US $)
Sun Pharmaceuticals $4.2bn Johnson & Johnson $56.1bn
Dr Reddys $2.4bn Pfizer $51.75bn
Divi’s Laboratories Ltd $2.3bn Roche $49.23bn
Cipla $2.5bn Novartis $47.45bn
Aurobindo Pharma $1.9bn Merck & Co. $46.84bn
Torrent Pharmaceuticals Ltd $1.5bn GlaxoSmithKline $44.27bn
 Lupin $1.2bn Sanofi $40.46bn
Zydus Cadilla $1.0bn AbbVie $33.26bn
Abbott India $1.7bn Takeda $30.52bn
Alkem Laboratories $1.8bn Shanghai Pharmaceuticals Holding $26.69bn

Source: Pharmaceutical-technologies.com

Supply Chain Management in Pharmaceutical Industry:

Pharmaceutical companies do not have flexible, cost-efficient and robust supply chain (Pwc report-Pharma 2020). Figure 1 presents the supply chain of pharmaceutical industry. It covers the innovation and development of new product, manufacturing, packaging, distribution to wholesaler, retailer, and pharmacy and directly to patient. Presently pharmaceutical companies are not working on JIT (Just in time) basis, or producing on demand basis, rather they produce the things, store it in the warehouse and decrease the cost efficiency of companies.

Figure 3 Supply Chain of Pharma Company

Source: Pwc

The pharmaceutical supply chain involves a wide variety of stakeholders; including suppliers, wholesale distributors, and pharmacy benefit managers. The stakes are high for pharmaceutical firms in such a dynamic phase. Drugs that are improperly marketed damage both the credibility and customer loyalty of the organization, as well as future benefit. An inefficient supply chain can disturb the health of patient and create disruptive effect on public health.

Challenges in SCM of pharmaceutical industry:

Major challenges in pharma industry is to maintain the quality of drugs, delivery on time, network of supplier, mode of transportation etc. Few drugs need optimum temperature during transportation from one place to another which became a challenge if temperature is not maintained (Shah, 2004). Recently in news temperature of -80degree Celsius is required during transportation to maintain the quality. So, here emerging technologies like block chain can help to monitor the temperature of vaccine.

Best practices in Pharmaceutical Industry:

In recent years, the pharmaceutical industry has become highly competitive. The rise of counterfeit medications, stringent quality regulations and serialized mandates has been seen. This made it important for the pharmaceutical industry’s supply chain to be strong and traceable. Hill (2019) discussed five best practices to be applied in pharmaceutical supply chains.

Associate and Consort with digital business network

The cornerstone of a multi-enterprise supply chain is a digital business network. This electronically links all of the supply chain partners across the cloud. It makes it possible for them to work together in sync when pharmaceutical supply chain partners are related. This offers end-to-end visibility and an incentive for multiple business interactions to collaborate.

Evaluate manufacturing Practices

Analyze in depth the manufacturing process. Focus on the collection of good quality practices required so that all goods are consistent across all batches. Implement sound measuring practices to guarantee that a drug’s recipe is not contaminated.

Corroborate traceability

In order for pharma companies to have visibility into the development of their partners, end-to-end traceability is important. This will assist them to manage the consistency of the commodity across the multi-enterprise, multi-tier supply chain. Companies can use block chain technology, Internet of things to ensure the traceability in the supply process of medicines.

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Respond to change in Demand

In order to identify and respond to changes in supply and demand, pharmaceutical supply chain management must be robust. You will analyse knowledge in real time through the implementation of state-of-the-art planning applications. Share it with your supply chain partners immediately if you notice an unexpected shift in demand or a supply interruption.

Transparency in Inventory

It is also essential to assign transportation, warehousing and other value-added services to various channels. Get full visibility of inventory downstream and enforce good shipping practices. This will ensure that the destination is reached by your pharmaceutical goods without losing the quality. Transparency will increase the confidence among the partners and stakeholders of supply chain.

Conclusion:

This write-up describes about the supply chain management in pharmaceutical industry. It includes basic concept of supply chain management, flows (information and physical) of supply chain management, working of supply chain management and five C’s of SCM. This study also describes the overview of pharmaceutical industry, top 10 companies worldwide and in India. Role of supply chain management in pharmaceutical industry is also discussed. Effective supply chain management can create the efficient supply of drugs to end users. Major challenges in the SCM are to maintain the quality of drugs, on time delivery etc, which can be resolved by using emerging technologies like block chain, IoT and AI. Finally write-up concludes with the best practices followed in the pharmaceutical industry.

References:

Kapoor, D., Vyas, R. B., & Dadarwal, D. An Overview on Pharmaceutical Supply Chain: A Next Step towards Good Manufacturing Practice. Drug Des Int Prop Int J 1 (2)-2018. DDIPIJ. MS. ID, 107.

Mehralian, G., Zarenezhad, F., & Ghatari, A. R. (2015). Developing a model for an agile supply chain in pharmaceutical industry. International Journal of Pharmaceutical and Healthcare Marketing.

Shah, N. (2004). Pharmaceutical supply chains: key issues and strategies for optimisation. Computers & chemical engineering, 28(6-7), 929-941.

Pwc Report (2020):Pharma 2020-Supplying the future. Retrieved from https://www.pwc.com/gx/en/pharma-life-sciences/pharma-2020/assets/pharma-2020-supplying-the-future.pdf

Hill, K(2019). Five best practices of Pharmaceutical Supply Chain Management. Retrieved from https://www.epmmagazine.com/opinion/5-best-practices-that-pharmaceutical-supply-chain-management/

Wesources:

www.Google.com

www.Ibm.com

www.Pharmaceutical-technologies.com

www.InvestIndia.com

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Social Media Marketing and Consumer Psychology

By: Bushra Sarwar

What is social media?

Usage of internet, social media, smart phone apps and other technology for digital communication has become part of the everyday lives of billions of people. Nowadays, social media is prevalently used by everyone. Social media is a digital platform like Facebook, Instagram, Twitter, Linkedin, etc., which is used by the public to share their ideas, photographs, and information in the virtual world. Other activities like blogging, social gaming, business network, advertisement, platform to promote new talent, movie review etc. even politician used social media to create awareness and reach the voters (Stephen, 2016).  Even in such pandemics, social media helped a lot to spread awareness about the harmful effects of covid. As per the news article of Krishnan (2019), average time spent on social media by Indian is more than 2 hours. An average US adult spent 38 minutes/day on Facebook, while 16-24 years age group youth spent 3hours/day on social media (Metev, 2020). Metev (2020) expected more than 3 billion people are expected to join the social media network.

Social networking began as a way for friends and family to communicate. Still, it was later embraced by companies who wanted to take advantage of a typical new medium of communication to reach consumers. The strength of social media is the opportunity to communicate and exchange data with everyone on this world or several individuals at the same time. Social networking has been primarily adopted as an efficient tool that supports companies’ marketing objectives and strategies, especially in aspects related to customer interaction, management of customer relationships and communications.

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Types of Social Media Network:

Foreman, C. (2017) defined various types of social media network and its usage. Social networking can strategically strengthen two-way contact between businesses and consumers and link more customers to organisations as a result. Figure 1 presents the summary of Foreman defined social media network. Ten types of social media network are explained, and every platform has a different usage for its users. Along with social media, network examples are also given.

Social networks are communication and interaction channels that lead to growing trust among societies. Any website or online forum that allows users to express their views, thoughts, information, and promotes engagement and community building can be categorised as a social network. (Ziyadin et al., 2019).

What is Social Media Marketing (SMM)?

SMM is the use of social media platforms (Facebook, Twitter, Snapchat, Instagram, Youtube, Pinterest etc.) to create your brand, to reach in the audience, to boost traffic on your website, and to reach masses at once. SMM includes sharing great content on your social media pages, listening to your followers and engaging them, reviewing your metrics, and running social media ads.

Do you ever realize, if you visit any add, shopping sites like Amazon, Flipkart, Myntra, AJIO etc., on social media, you start getting recommendations to buy or see on the same kind of advertisement on your social media platform? It is surprising why it happens? It happens due to data analytics tools. Whenever you start visiting a website, company start storing your data and using predictive analytics, start identifying your choices of things and start sending mail related to your wish list.

Fundamentals of Social Media Marketing:

Figure 3 presents the fundamentals and core pillars of social media marketing. Whenever you are in think of to publish something on social media, start looking on the five fundamental principles of SMM. Social media platform generated a lot of content writer jobs to youth. Firstly identify your strategy, define your goals and objectives, identify social media platform and decide the type of content which you want to share with the world.

Start planning and publishing the excellent content on the desired platform, engage your audience by social media tools. By using analytics, identify the preferences of the masses and start catering the same advertisement.

What is consumer psychology?

Consumer psychology is the branch of social psychology to understand the behavior of consumer. Consumer psychology is the process used by consumer to select, decide, and in purchasing of products. Consumer psychology is very important to the business world, once they understand the behavior of consumer, it would be easy for them to serve the products of their choice and desire. As per the Kotler (Marketing Management Book Author), marketing is the pull process, not push process and in this way it differs form selling. When companies start innovating the products, and selling the products as per the consumer’s choice, companies start gaining the market share and stay ahead from their competitors.

Influence of social media on consumer psychology:

As per Fitzgerald (2019), social media has become an essential tool to influence the buying behaviour of consumers. Now a day’s business world is using social media network to reach a large number of population. Studies believed that three kinds of factors affect consumer psychology: social, personal, and psychological. Individual elements are people’s interest and opinion; psychological factors are a person’s beliefs and attitude, whereas social factors are peer’s group, social group, and social media group.

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Fitzgerald presented few facts which show that social media influence consumer psychology:

  • 71% population buy the things based on social media referrals (hubspot report)
  • For purchasing 31% user browse social media. (marketing week.com)]
  • Social media influence purchase of 47% millennial. (Deloitte)
  • To increase brand familiarity 80% population uses social media. (maybe Tech)
  • Shopping brands which have social media presence, their sales are 32% more. (Big Commerce).
  • Mostly brands (90%) use social media for creating brand awareness. (Hootsuite)

The above facts shows that social media has strong presence and influence our decisions. Now this article is discussing the stages of consumer buying process-

Figure 4 Buying Behavior Process

Figure 4 presents the stages of consumer buying behavior process. Social media has strong presence in all the stages, which influence need identification process of customers, during exploring the products, social media sites provides lot of options to explore number of brands products which influence the decision making process of consumers. Social media influence purchase of consumer through various factors. Factors are given below:

  1. Create product awareness
  2. Originate social proof to influence other customers
  3. Discount offer, promotion on social media
  4. Brands endorsed by celebrity and advertise on social media
  5. Celebrity and well known person reviews
  6. Trend set by the influencers

The above factors show the influence of social media in the buying behaviour of consumers because these factors affect consumer psychology. Social media platforms create awareness about the products. Social proofs are significant in an online platform to make a purchase. Whenever we buy any products from social media, we always look for reviews, from the other customers who already purchased the same products and are using it. This creates a picture of satisfaction o sense of belongingness in our mind and forces us to buy the same products which have excellent reviews on social media platforms.

Sometimes, discounts, sales, offers influence or pull the consumer to make a purchase. For example Flipkart, amazon, myntra, big bazaar generate offers on the occasion of Diwali, Dussehra, or any Festivals. Similarly, big bazaar has Wednesday offers. These all offer influence consumer psychology. Similarly, celebrity advertisement and celebrity endorsement also influence our psychology.

Why consumer psychology is important?

Seventy-six per cent of customers expect businesses or brand houses to consider their needs and desires (Salesforce survey). This suggests that if a business brand doesn’t know what a customer wants until they can tell you, they’re likely to take their company elsewhere. Influential companies develop their marketing campaigns based on insights into customer behaviour. Based on their thoughts alone, they do not produce goods and marketing plans; they bring external input into the fold to figure out what consumers want and how they want it then engage with them accordingly. This is the essence of having a meaningful customer experience. For creating a loyal customer base, customer experience is significant.

Conclusion:

This article/write-up throws the light on social media and consumer psychology. The article starts with the introduction of social media, social media networks, and social media marketing. Ten types of social media network discussed in this articles which have a strong presence in the minds of consumers. Strategy, planning and publishing, engaging the customers, analyse and predict consumer behaviour is the fundamental of social media marketing. The article also discussed consumer psychology and how social media platform affects consumer psychology and influence consumer behaviour. Articles also discussed why consumer psychology is essential for the business to increase their outreach and presence in the global world. In all sense, it shows that social media has a strong presence which influences our psychology and buying decision process.

Learn more about Marketing Management and Digital Marketing with Enhelion’s Online course certified by Socio Media and Sahil Malhotra!

Reference:

Foreman, C. (2017). https://blog.hootsuite.com/types-of-social-media/

Fitzgerald, R. (2019).https://connextdigital.com/how-social-media-impact-consumer-buying-behavior/

Krishnan, V. (2019). https://www.thehindu.com/news/national/how-much-time-do-indians-spend-on-social-media/article29201363.ece

Metev, D.(2020). https://review42.com/how-much-time-do-people-spend-on-social-media/

Stephen, A. T. (2016). The role of digital and social media marketing in consumer behavior. Current Opinion in Psychology, 10, 17-21.

Ziyadin, S., Doszhan, R., Borodin, A., Omarova, A., & Ilyas, A. (2019). The role of social media marketing in consumer behaviour. In E3S Web of Conferences (Vol. 135, p. 04022). EDP Sciences.

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Analysis of Trademark Laws in USA, UK, and UAE

Trademarks are, generally, words, names, symbols, devices, designs, or other distinctive signs or stamps which serve to recognize the wellspring of merchandise or benefits and recognize them from those sold by others.[1] Trademarks are usually of names, logos, symbols, devices, etc., representing an individual entity. For instance, the ‘M’ for McDonald’s has a ‘™’ to it specifying the distinction of its source.

Trademarks are essential as they show how viable the product is. They have been used by companies that have a brand value attached to them. It offers quality and ensures the customers’ product safety is received; this also saves the company from fraudulent misuse of their brand name or logo.

Trademarks promote enterprise, both locally and globally, by providing owners of trademarks with recognition and profit. Trademark protection also hinders unfair competitors’ efforts, such as counterfeiters, to use similar distinctive signs to market their products and services. Trademark law allows people with skill and enterprise to produce and market goods and services more profitably, thereby facilitating domestic and international trade. Moreover, trademarks can protect consumers from unwittingly paying a premium for inferior products.[2]

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Brands play a significant role in the socio-economical out a way for the people. The quality of a product is essential in the growth of a brand and the shareholders. To facilitate the whole system of intellectual property, independent trademark laws have been brought out in countries for the ease of business and to protect the companies against fraud.

Rochelle Dreyfuss observes that, in recent years, trademarks have begun to serve an additional purpose, of “becoming products in their own right, valued as indicators of the status, preferences, and aspirations of those who use them.[3] As putting the concept in simple terms by Robert N Klieger, the Trademark makes tomorrow’s business something more than an accident.[4]

US Laws

The US trademark framework accommodates both government and state assurance of brand names. Regardless of whether under government or state law, enlistment is anything but essential for enforceable rights. The principal statute dealing with Trademark and unfair competition law in the United States is the Lanham Act, 15 USC Section 1051 et seq. The Act had been altered on various occasions since its effective date more than 70 years ago. The amendments have, among other things, made dilution of famous trademarks a federal offense; provided statutory damages as a remedy against sellers of goods bearing counterfeit marks; permitted the filing of applications for registration based on an intent to use, and created a private cause of action against cybersquatting.[5]

The Lanham Act governs the enforcement of trademarks, service marks, and unfair competition. It provides authority from the USPTO, which is the US Patent and Trademark Office, to register marks used in interstate or foreign commerce.[6] As a general rule, registration is not expected to get brand name rights or authorize a brand name. Instead, the first body to use a distinctive mark, in the beginning, to utilize a particular mark in business may guarantee rights to that Trademark for the merchandise or organizations with which the imprint is utilized. The proprietor of an unregistered trademark may not use the ‘®’ mark, as it may be used only proceeding or in connection with a registered mark; however, the holder of an unregistered mark might use the ‘™’ symbol to put others on the announcement that it claims rights to a mark.[7]

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As the US Supreme Court has suggested that a trademark is an elaborative form to display the quality of production and to maintain the benefits of a good reputation.[8] Therefore, in the US system, the goodwill is considered over the registration and substantive clauses. The Supreme Court, while quoting the  same stated, “In truth, a trademark confers no monopoly whatever in a correct sense, but is merely a convenient means for facilitating the protection of one’s goodwill in trade by placing a distinguishing mark or symbol-a commercial signature-upon the produce or the package in which it is sold.”[9] Trademark rights can be lost through indecorous licensing, assignment, genericity, or abandonment. If the use of a trademark is licensed without adequate quality control or supervision by the trademark owner, the Trademark will be cancelled. [10]

The language of the statue is somehow or another predictable, with this limited the vision of the extent of Federal protection. Under the Act, a firm initially should select an imprint that is equipped for recognizing its merchandise. Under state law, a trademark need not be famous in order to give rise to a weakening claim. Instead, dilution is available if-

(1) the mark has “selling power” or, in other words, a distinctive quality; and

(2) the two marks are substantially similar. [11]

The steady development in the subject matter and scope of trademark law has not gone disregarded, and legal scholars have long called warnings about the dangers of overly well-developed trademark rights.[12] The laws are based on the gravity of good-faith and the vitality of the owner. If any hindrance is found from the plaintiff, the court decides based on natural justice.

UK Laws

The United Kingdom has a history of trademarks and indictive marks on its products from the 16th Century before the rule of King James I. All these rules were merely in good conscience, and finally, the these were complied with and codified in the Trade Marks Registration Act 1875. These gave the traders a sense of ethics and gave powerful rights to their proprietors and are very important and valuable assets.

Trademark registration is a fairly more organized sector in the United Kingdom as compared to the United States. For the application of a registered trademark, a body has to do the following-

  1. They can register a trademark by applying to the United Kingdom Intellectual Property Office (abbreviated to the UKIPO).[13]
  2. The second option is to file an application with the EU Intellectual Property Office (abbreviated to the EUIPO). The main profit of applying for an EU trademark is it covers all EU member states (including the UK), so you save the money and time of having to make distinct applications in multiple national intellectual property offices.[14]
  3. Lastly, an application can be made using the Madrid Protocol. This allows a home trademark recording or application to form the basis of an application for a so-called international registration. This claim is filed with the International Bureau of the World Intellectual Property Office (or WIPO).[15]

It is to be standard that the trademark laws of the United Kingdom include England, Wales, Scotland, Northern Irelands, and the Isle of Man, and the people of these can only apply for Trademark by the following process. Due to the high level of harmonization in trademark law within the European Union and its member states, Brexit will have a substantial effect on trademark protection in the United Kingdom. First, Brexit would mean that EU trademark protection would no longer extend to the United Kingdom. Not even an often-mooted membership of the EEA as a form of soft Brexit would enable the unitary right to extend to the United Kingdom.[16]

Implementation of trademark rights in the United Kingdom is predominately a civil matter. Both recorded Trademark and passing-off entitlements can be outlooked in the High Court (Chancery Division), as well as in the IP Enterprise Court. Judges in these courts tend to be IP experts. Claims at the Intellectual Property Enterprise Court can be multi-track or small entitlements track; the track chosen has inferences for the remedies available to the proprietors. The ensuing part features an unusually large number of cases this year in relation to “exhaustion of rights” which provide an important role in ensuring free movement of goods within the single market of the claimant.[17]

The administrator of a mark cannot exercise total control over every use of the Trademark; he will, however, be able to an agreement with it like most other property rights by, for example, by assigning, licensing, and mortgaging it. [18]This view surfaced in Arsenal v Reed[19] where it was held that the primary function of a trademark is the origin function.

EU trademark law contains a variety of specific defenses and other limitations on the exclusive rights conferred upon Trademark the EU. Set out under Article 15 of the 2017 EUTM Regulation and Article 7 of the 2008 TM Directive, “exhaustion” acts as a limitation of the exclusive rights provided to EU trademark owners.[20]

UAE Laws

The trademarks in UAE is similar to that seen under the general concept that trademarks are names, words, signatures, letters, figures, illustrations, logos, titles, hallmarks, seals, pictures, patterns, declarations, packets, or any other symbols or group of marks if they were used or proposed to be used either to extricate goods, products or services from whatever sources, or to show that certain services, belongings or products belong to the owner of the Trademark, because of their delivery, manufacturing, selection or trading. The voice accompanying a trademark is considered a part of it. [21]It is governed by the Federal Law No. 37 of 1992 on Trademarks.

The enlisted brand name will be under legitimate assurance in UAE for a long time since the date of authentic TM enrolment. To keep the brand name in power following ten years – the proprietor should pay extra authority fess to the UAE Ministry of Economy for additional augmentation. The amount of expansions for brand name endorsements isn’t restricted.

The UAE Trademark Law contains no direct causes of action for what is frequently referred to as ‘trademark infringement’ in other jurisdictions. Rather, Articles 37 and 38 set out criminal offences focused on fabricating and emulating trademarks. The phrasing of the offenses can make it problematic to bring actions against anything other than the direct counterfeit.[22]

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The lawsuit before the courts includes very little oral advocacy. Instead, written pleadings are exchanged during each hearing. There are usually several rounds of pleadings before the court adjourns to issue its decision. Cases are heard by the bench; there are no jury trials.[23] The work of witnesses to provide oral evidence – particularly in civil cases – is possible but very rare. Authorities may be appointed by the court to provide an opinion on technical or complex matters.[24] The UAE is expected to implement the GCC Trade Mark Law in the coming months. The government has also announced the setting up of specialized IP Courts, which are expected to be in operation soon.[25]

The Trademark Law likewise gives criminal solutions for the encroachment of brand names as fines and additionally detainment. You can likewise make a move against brand name encroachments through Dubai Customs, which has the order to quit encroaching items prior to entering the nation, in this way making your brand name assurance more productive and secure.

Therefore, it is seen that trademarks all over the world are similar and follow the common strategies laid down by the World Trade Organisation. A trademark is the most valuable asset of a business to upkeep its prestige; therefore, it is more important to register the business trademark and to keep an updated. Usually, a trademark is registered for ten years, depending on the laws of each country. It is important to maintain trademarks by brands, especially well-developed brands. Any counterfeit in the following should be brought into action in the courts as many countries have

[1] Brian Farkas, Which Protection Do I Need: Patent, Copyright, or Trademark? NOLO, https://www.nolo.com/legal-encyclopedia/which-protection-do-i-need-patent-copyright-or-trademark.html

[2] Michael Cosgrove et al, Case Study:  Trademark Infringement Issues,7 JOURNAL OF BUSINESS CASE STUDIES,19, 19-26 (2011)

[3]Jeanne C. Fromer, The Role of Creativity in Trademark Law, 86 THE NOTRE DAME LAW REVIEW,1885, 1892-93,(2011)

[4] Ibid.

[5] Roberta Jacobs & Lesley McCall Grossberg,United States, THE LAW REVIEWS,(Oct 2019), https://thelawreviews.co.uk/edition/the-trademarks-law-review-edition-3/1209926/united-states

[6] Jessica Hiney &Lisa M Mottes, Trademark procedures and strategies: United States, WTR, (29 Mar 2017), https://www.worldtrademarkreview.com/portfolio-management/trademark-procedures-and-strategies-united-states

[7] Ibid.

[8] Park ‘N Fly, Inc. v. Dollar Park ‘N Fly, Inc., 469 U.S. 189, 198 (1985)

[9] United Drug Co. v. Theodore Rectanus Co, 248 U.S. 90 (1918).

[10] TradeMark Law, HG.ORG, https://www.hg.org/trademark-law.html

[11] Mead Data Central, Inc. v. Toyota Motor Sales, U.S.A., Inc., 875 F.2d 1026 (2d Cir. 1989).

[12] Ralph S. Brown, Jr., Advertising and the Public Interest: Legal Protection of Trade Symbols, 57 Yale L.J. 1165, 1177-80 (1948)

[13] Charlie Bond, UK: The Basics of Trade Mark Law, MONDAQ, (Nov 20,2017), https://www.mondaq.com/uk/trademark/648042/the-basics-of-trade-mark-law

[14] Ibid

[15] Ibid

[16] Marc Mimler, The Effect of Brexit on Trademarks, Designs and Other “Europeanized” Areas of Intellectual Property Law in the United Kingdom, British Institute of Comparative and Operative Law, (Dec 2017), http://eprints.bournemouth.ac.uk/31199/1/Brexit%20Paper%20no.7.pdf

[17] https://www.worldtrademarkreview.com/portfolio-management/trademark-procedures-and-strategies-united-kingdom

[18] All Answers Ltd. November 2018. Trademark Systems in the UK. [online]. Available from: https://www.lawteacher.net/free-law-essays/business-law/trademark-systems-in-the-uk-business-law-essay.php?vref=1

[19][2003] EWCA Civ 696

[20] Trademark Infringement, 109 TRADEMARK REP. 532 (2019).

[21] Intellectual Property, Information & services, https://u.ae/en/information-and-services/business/intellectual-property

[22]  David Harper,UAE – Trademark Litigation 2017 (A global guide), CWB LEGAL, (Oct 21,2016), http://www.cwblegal.com/trademark-litigation-2017-global-guide-uae/

[23] Ibid.

[24] Ibid.

[25] Maria Farrukh Irfan Khan, Trade mark litigation in the United Arab Emirates: overview, UNITED TRADE MARK & PATENT SERVICES,(Sept 01, 2018), https://uk.practicallaw.thomsonreuters.com/w-011-8550?transitionType=Default&contextData=(sc.Default)&firstPage=true#co_anchor_a192792

 

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Role Of Copyright Law in the Media Industry

By: Annie Mampilly

Copyright, as well known is a bundle of rights which are bestowed under law on the creators of literary, dramatic musical and artistic works and the producers of chromatography films and sound recordings. In other words, we can also say that copyright is nothing but the exclusive legal rights which confers protection to an authorship, composition or artistry. Thus, copyright is an umbrella that protects and controls the rights of a person/entity over a literary, dramatic, musical or artistic work or computer program along with the rights pertaining to its publication, sale or production.

In my own words and from my angle of view, copyright is the right of an author over his work. A unique idea, an innovative work, a novel invention are all products of a person’s or an entity’s toil and sweat. Hence, the same should be appreciated and protected. Copyright aims at this. On one hand it confers exclusive right to the author and on the other hand its restricts others from the unauthorized use of the creation without the knowledge and consent of the author. In short, the copyright law indicates a notion of respect towards the creativity of an author.

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Media is often referred to as the ‘fourth pillar’ of democracy in the present scenario. In the current century, Media plays a vital role in the lives of people. Whether it be print media or electronic media, it has become an inevitable part of the lives of the new generation. Through smart phones, computers, laptop, tablets and various other gadgets and applications, media reaches the tip of a person’s finger. The influence of media is in its superlative degree. Irrespective of the veracity of the content, media greatly triggers the societal behaviour in both, good ways and bad ways. Media Industry is an entertainer as well as a destructive weapon.

Movies, songs, serials, programs, shows etc. Occupy prominent positions in the pyramid of media industry when it comes to the creative side. Hence, such creativity needs to be exclusively protected. It is at this juncture, the copyright law steps into the media industry. For example, take the case where a popular song in a particular movie is copied by an individual in his short film. He used the same tune and pitch of the song but wrote an all new lyrics. In such a situation,

  • Is there a copyright violation?
  • Is it legal for him to do so?
  • Is it authorized?
  • Is he punishable?
  • What about the rights of the original author of the music?
  • What are the rights available to the author?
  • Can the author sue the other person?

There are even more questions that can come into the minds of a person during such instances. That’s when a law aspirant needs to know about the role of the copyright laws in the media industry. Let us now have a bird’s eye view on this topic.

Copyright chaos

The number of channels are increasing day by day and TV shows are also multiplying. Hence, this has stirred up a rivalry among channels and leads to a lot of copyright issues as well.

Firstly, take the case of a very popular and highly rated serial. The edifice of a serial is nothing but a strong script. The script is the product of a creative mind i.e. it’s author. The author is very well entitled under law to get his right protected under copyright law. Once copyright is obtained, the author is vested is with absolute and exclusive rights over his creation. None other than he himself is authorized for the use of his work in any manner. Since the entire serial is anchored strongly in its script, it has become a common practise in the media industry to identify means to influence the employees of the rival channel to get to the script and know further. Once the script is known, the rival channels can easily come up with something that could strike out the program.

Secondly, a script alone is not sufficient for a movie or a program or a serial to be born. It mandates various other elements and factors including a production. If a person or an entity should agree to fund the program and become the producer, it is essential and inevitable that the script is shown to them. However, there can be hardly any evidence for sharing of the script with various producers and such situations make the script vulnerable as it is prone to very higher chances of misuse. The idea can be misused if shared with rivals.

It is not the idea per se that is protected under the copyright law. The protection is available only when the idea is as such converted to a tangible instrument. For instance, if a prospective investor misuses the copyrighted instrument, the copyright law can be invoked and legal remedies are available to the author. It also a common practice that both the parties shall enter into a Non Disclosure Agreement for a better understanding and protection of the copyright.

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Section 2(d)(v) and taglines

‘Computer ji lock kiya jaye’

There is not a single Indian who will not be familiar with this tagline by Amitabh Bachan in the popular television program with a world wide fame, ‘Kaun Banega Karodpati’.

Now here is the question. Who owns the right towards this tagline? Is it with Mr.Amitabh Bachan, actor and host of the show who said this line? Is the right lying with the script writer? Should the right go to the Director, who is the real captain of the show ? Or what about the producer who backs the entire program financially?

This is a crucial situation which can bring a very high level of ambiguity as to who owns the rights of a tagline. Section 2(d)(v) of the Copyright Act makes its entry to the scene at this point. This provision elucidates that the author of a Cinematographic work or sound recording is none other than the producer.

Broadcast

Under the copyright law, broadcast rights can also be copyrighted. In simple terms, we all know that broadcast means the transmission of programs either by television or by radio.

On moving from the layman’s idea to a lawman’s idea, the term broadcast embraces a transmission through the medium of a wireless telegraphy of visual images, sounds or other information that is capably of being lawfully received by the members of the general public or that has been lawfully transmitted for presentation to the members of the general public. In covers analogue, terrestrial and satellite broadcasts through television or radio.

The Doctrine of fair use

The most important right of a user of a copyright lies in the doctrine of fair use. It is necessary the rights are used fairly and lawfully. It strikes a notion of balance. It prevents any sort of unlawful, unauthorized and unfair use of the copyright. The fairness it determined by analysing the following factors:

  • The purpose and character of the use.
  • The nature of the copyrighted work.
  • The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
  • The effect of the use upon the potential market for or value of the copyrighted work.

Apart from the above, the doctrine of fairness also gets judged by the impetus of the public interest. Even Courts give high weightage to public interest when it comes to determining the doctrine of fair use.

Offenses and Penalties

Like every other penal law, copyright laws are also no novice to offenses and penalties. The copyright act also classifies certain acts and offenses and the offenses under the copyright laws also comes with penalties as per the gravity and seriousness of the offense committed.

Generally, offenses under the Copyright Act are ‘cognizable offenses.’ Offenders of copyright violations shall be subjected to:

  • Police Search
  • Seizure

Moving to the remedies under the Copyright Act for copyright infringement, there are civil remedies as well as criminal remedies. Let us now have a glimpse at the various provisions and the remedies.

Civil remedies for copyright violations are embedded under Section 55 of the Copyright Act. Criminal remedies for infringement of copyrights are envisaged under Section Section 63 of the Copyright Act. The various criminal remedies explicated under this provision includes the following:

  • Injunction
  • Damages
  • Accounts
  • Other remedies conferred by the law on the owner

Under the Copyright Act, an offender, i.e. a person or an entity that violates the copyright of another person can be punished with imprisonment for a period of 6 months and can extend up to two years along with a penalty of fine of Rupees fifty thousand to Rupees Two Lakhs.

Further, the Police is empowered to seize the infringing copies and all materials utilized to produce the same. Section 64 of the Copyright Act speaks about this.

Tool of Monopolistic Oppression

Even though the main idea behind the introduction of copyright laws lie in the protection of an author’s rights, it has also taken an evil guise too in the present scenario. Exclusivity is an important element in copyright. The author alone gets the right. The sole owner. This shapes a kind of monopoly. And as we all know, mono is one and this kind of a monopoly rules out the chance of a competitor. It restrains others from the use of the copyrighted work and can even bring about criminal liability. In spite of the element of public interest or the larger good, there is higher level of chance that, the copyright given to an author to respect and protect his rights may be used to mould a monopoly outweighing others.

Important judgments

From a legal angle, any study of the role of copyright laws in the media industry is lame and incomplete without a reference to caselaws. There can be landmark cases, precedents, popular cases, etc. Hence, let us now go through a few of the most important copyright cases in the media industry along with a brief description of the verdict or important question of law that was dealt with in the respective copyright caselaw.

No. Copyright-Media Industry Case Law Important points
1 R.G.Anand v. M. S. Delux Films[1] ·      Copyright infringement against the movie ‘New Delhi.’

·      Clarified the concepts of idea-expression dichotomy and copyright infringement.
2 Nichols v. Universal Pictures Corporation[2] ·      Dealt with copyright infringement by non-literal copying of a dramatic work.

·      Held that whether it be a book, play or film, copyright cannot be extended to the characteristics of stock characters in a story.
3 Mandeville-Anthony v. Walt Disney Co.[3] ·      Pertaining to the copyright infringement of copyright in the movies – ‘Cars’ and ‘Cars 2’

·      The Appellate Court affirmed lower court decision that the movies did not infringe the copyrighted works of Jake Mandeville-Anthony as they are not substantially similar as a matter of law.
4 Zee Entertainment Enterprises Limited v. Sony Pictures Networks India Private Limited[4] ·      Copyright issues pertaining to TV shows.

·      It was stated in this case that the surest and safest test to determine whether or not there is a copyright infringement is to see if the spectator, the reader, the viewer or the audience, after having read or seen both the works is of the opinion and is of an unmistakable impression that the subsequent work appears to be a copy or a facsimile of the original.

Conclusion

As stated in the beginning of this work, Copyright, is a bundle of rights which are bestowed under law on the creators of literary, dramatic musical and artistic works and the producers of chromatography films and sound recordings. It is a protective law, it is a law of respect and also a law of appreciation to the author and his creation or his/her innovation. I would also say that copyright law is a necessary law which protects and encourages the creative side of a person.

While the goodness and merits of the copyright law gets piled up on hand, an evil side also peeps out from another side. One should note that, like every other law, the law of copyright is also intended to protect the rights and shield the author against any sort of mala fide and unauthorized use and violation of his or her rights. The doctrine of fair use should be given due weightage. Every case differs from the other and the verdict should be determined after analysing the facts and circumstances of the respective case. Innocent, unintentional, harmless and bona fide infringement should be protected. Public interest should also be given extreme importance in every case. The detrimental factors differs from a case to case basis. Hence, I suggest that, before passing a final verdict in any case, the facts and circumstances should be meticulously analysed, giving due importance to the author’s rights and not outweighing the larger public interest.

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[1] AIR 1978 SC 1613

[2] 45 F.2d 119(2nd Cir. 1930)

[3] 11-56441 (9th Cir. 2012)

[4] Bombay High Court, 5th April 2017