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The Copyright Bargain: Fair use in the United States and the United Kingdom

By: Rushika

Of all the creative work produced by humans anywhere, a tiny fraction has continuing commercial value. For that tiny fraction, the copyright is a crucially important legal device.

-Lawrence Lessig

Introduction

Creators of any artistic or literally work often do so in the hopes of benefitting financially and commercially from the same. However, in a competitive and capitalistic world, creators are frequently suppressed by the more powerful entities and their work exploited. There are also various issues that arise in respect of who the owners of the work are. Copyright is that legal mechanism that protects the rights of the creators of works and enables others to identify the true owner of the work.

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Copyright

Often described as the engine of progress,[1] copyright is the legal term used to describe the rights that creators have over their artistic or literary works.[2] The Copyright, Designs and Patents Act, 1988 of the United Kingdom defines copyright as a property rights which subsists in (a) original literary, dramatic, musical or artistic works, (b) sound recordings, films or broadcasts, and (c) the typographical arrangement of published editions.[3] Extending similar protections, Copyright Law of the United States contained in Title 17 of the U.S. Code defines the contours of copyright as a protection that subsists in the original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.[4]

The need and importance of copyright law is firmly established today. That copyrights of creators must be jealously safeguarded is not contended. However, on many occasions, the works of copyright owners may be used for various non-commercial purposes such as education, research, news reporting and charitable purposes to name a few. To prevent such uses of the work could result in some highly undesirable consequences such as misinformation, and could even halt progress to a significant extent, which is quite contrary to the intended purposes of copyright protection. This article discusses the fair use and fair dealing of copyrighted works in the context of the United States of America and the United Kingdom of Great Britain and Northern Ireland respectively.

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Fair Use in the United States of America

Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances. In the United States of America, section 107 of the Copyright Act provides the statutory framework that determines the nature of a use and whether the same is fair. It provides that the use of copyrighted work for purposes such as- (i) criticism, (ii) comment, (iii) news reporting, (iv) teaching, (v) scholarship; or (vi) research, does not amount to an infringement under the Act. Further, in order to determine whether the use is fair or not, it calls for consideration the following four factors:[5]

 

  1. The purpose and character of the use, including whether such use is of a commercial nature or it is for non-profit educational purposes

In evaluating fair use, courts often approach a dispute with the intention of balancing the purpose of the use with the character of the use. While non-profit educational uses and non-commercial uses are more likely to find favour with the court, transformative uses are also received with a positive outlook by the courts. In TCA v. McCollum,[6] when the routine of the black comedy Hand to God was featured in a play, the court held that the play’s usage was transformative because the audience must be aware of the original in order to get the joke. However, this does not mean that the use must always be transformative. For instance, in Swatch v. Bloomberg[7], it was held that use for the purposes of news reporting was not required to be transformative.

 

  1. The nature of the copyrighted work

Another important factor for the courts to consider is the nature of the copyrighted work. Here, they must analyze the degree and extent to which the work relates to the purposes of copyright such as encouraging creative expression. Consequently, use of factual work is more likely to be considered fair rather than use of more creative or imaginative works such as novels, movies or songs. For instance, a defendant in a music file sharing case could not claim a fair use defense since he had failed to provide evidence that his copying of music files involved any transformative use. The court held that the defendant was confusing “‘fairness’ and ‘fair use’ and that fair use was not a referendum on fairness in the abstract.”[8]

 

  1. The amount and substantiality of the portion used in relation to the copyrighted work as a whole

In applying this test, courts oft look at the quality and quantity of the substance used. Where less than 1% of a person’s unpublished letters were copied and the purpose was informational, the same was held to be fair use.[9] However, where the unpublished letters were the “backbone” of the biography, it was found that the letters may have been taken more as a means of capitalizing on the interest in the person whose letters they were rather than in providing a critical study of the author.

In other contexts, even when a small amount of the copyrighted work was used, it was held to not be fair use when the same was the “heart” of the copyrighted work. For instance, when a television station’s news broadcast used 30 seconds from a four-minute copyrighted videotape of the 1992 Los Angeles beating of Reginald Denny, the court finding that the use was commercial and that it took the heart of the work, and affected the copyright owner’s ability to market the video, held that the same was not a fair use.[10]

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  1. The effect of the use upon the potential market for or value of the copyrighted work

The final factor for consideration under section 107 is the extent to which the unlicensed use causes harm to the existing or future market interest of the original work. Where the use effected the owners right to make future derivative works, it was held to not be fair use.[11] Similarly, where the material taken was substantial and the publication adversely affected the potential market for authorized books about the program, it was held to be an infringement.[12]

While the above four factors are explicitly identified for consideration by courts under section 107 of the Copyright Act, the courts may also place weightage upon other factors if the need may arise, based upon the individual facts of the case. Therefore, no specific formula can be evolved to identify infringement under the Act.

Fair dealing in the United Kingdom

Similar to the concept of fair use in the United States, exception to the copyright law exists in the United Kingdom under the principle of fair dealing. The Intellectual Property Office of the United Kingdom describes ‘fair dealing’ as ‘a legal term used to establish whether a use of copyright material is lawful or whether it infringes copyright.’ It further states that there is no statutory definition of fair dealing and the same ‘will always be a matter of fact, degree and impression in each case. The question to be asked is: how would a fair minded and honest person have dealt with the work?’[13] Accordingly, the courts have identified two essential factors that are relevant in determining whether a particular dealing with a work is fair or not. These are as follows:

  • Whether the use of the work affects the market of the original work; and
  • Whether the amount of work taken is reasonable and appropriate, and if the same is necessary to be taken.

In this respect, it is the view of the Office that where the work acts as a substitute for the original work and results in loss of revenue to the owner of the work, it is likely that such a dealing is not fair. Further, conventionally, only the use of a part of the work is permissible under the principle of fair dealing.

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Section 29 and 30 of the Copyright, Designs and Patents Act, 1988 outline the purposes and parameters within which the potential defense of fair dealing may be applicable. These are as follows:[14]

  1. Quotation, Criticism and Review: Where short extracts from the work have been reproduced for the purposes of criticism and review, the same is permissible provided that the critique or review is genuine. A more general defense of quotation is available as extracts may also be used for other purposes such as academic research or writings.
  2. News Reporting: This exception applies to use of copyrighted materials such as textual extracts or short video clips, for purposes of reporting current events that are of national or international importance.
  3. Parody, caricature and pastiche: This exception introduced in 2014 is made in respect to the use of various existing works to generate fresh or new social commentaries for purposes of humour or ridicule without the requirement of obtaining the permission of the original author.
  4. Research and private study for non-commercial research: Where single copies of a work have been made or where short extracts have been taken from them for non-commercial research or for private study by entities such as students and researchers, and the same has not been published or shared with others, such a use is exempted under the Act.
  5. Preservation or replacement copies: Often, it is necessary to preserve or conserve the original works of copyright owners that may otherwise be lost or destroyed. Further, with technological advancements, without the creation of digital formats of works, they may become obsolete. In such circumstances, replication of works would be fair dealing provided that the work is not one of multiple copies and it is not possible to obtain another copy of the same.
  6. Educational uses for instruction and examination: Use of work for teaching purposes, instructing students, etc. is not considered infringement provided that they are not used for commercial purposes.
  7. Text or data mining: Text or data mining is a fairly new concept that implies an automatic process of scanning or analyzing large amounts of data using scripts customized to look for patterns, or discover relationships and trends that are otherwise not visible through a normal reading. The purpose of this exception is to enable scientific growth and progress using computer technology where the research is not for the commercial benefit of the researcher. However, the researcher is required to comply with certain legal requirements such as legal access to the data through subscriptions, etc.

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It may be noted that while fair use and fair dealing appear to be similar to a great extent, the two terms are not interchangeable. An exception to copyright law that may be available in the United States under the principle of fair use may not necessarily be available under the law of the United Kingdom under the principle of fair dealing. While fair use is a more general defense and can be widely interpreted by the courts, the exceptions under fair dealing are stricter and more limited than those of the States. They are also less open to interpretation than the exceptions under fair use. Hence, this distinction between the two principles must be borne in mind at all times while considering the issues of copyright infringement in the two countries.[15]

Conclusion

Copyright is of immense importance to enable progress and development. Without the protection of copyright laws, most literary and artistic works would be of no value. This is neither favourable to the interests of the owners of the works nor to the economy. However, the protection afforded cannot be so stringent that it becomes detrimental to the overarching interest of society at large. Therefore, the exceptions carved out under the principles of fair use and fair dealing are highly significant. With the United States and the United Kingdom being two of the most developed countries in the world, the protections, and the exceptions to the protections afforded by them to various entities becomes of great relevance as legislators of various other nations look upto the same to formulate their own laws. Considering that the exceptions mentioned hereinabove are neither too liberal nor so stringent that they are insufficient, they appear to be suited well to the present purposes. Further, as observed, with changing circumstances, the exceptions have also been amended to include more advanced purposes such as data mining, hence keeping the law relevant and preventing the same from becoming outdated. However, with the number of fast-paced and unexpected technological advancements that have been taking place lately, it remains to be seen how the jurisprudence will evolve to encompass the same.

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[1] Intellectual Property Talent Search Examination, What is the Importance of Copyright? (Mar. 10, 2021, 11:17 AM), https://iptse.com/why-are-copyright-laws-important/

[2] World Intellectual Property Organization, Copyright (Mar 10, 2021, 11:17 AM), https://www.wipo.int/copyright/en/

[3] Copyright, Designs and Patents Act, 1988, c.48 §1, https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/957583/Copyright-designs-and-patents-act-1988.pdf

[4] Copyright Law of the United States of 2020, 17 U.S.C., §101, https://www.copyright.gov/title17/title17.pdf.

[5] U.S. Copyright Office, More information on Fair Use (Mar 10, 2021, 11:17 AM), https://www.copyright.gov/fair-use/more-info.html.

[6] TCA Television Corp. v. McCollum, No. 15 Civ. 4325 (S.D. N.Y. Dec. 17, 2015)

[7] Swatch Grp. Mgmt. Servs. Ltd. v. Bloomberg L.P. 742 F.3d 17 (2d Cir. 2014).

[8] Capitol Records Inc. v. Alaujan, 2009 WL 5873136 (D. Mass., 7/27/09).

[9] Wright v. Warner Books, Inc., 953 F.2d 731 (2d Cir. 1991).

[10] Los Angeles News Service v. KCAL-TV Channel 9, 108 F.3d 1119 (9th Cir. 1997).

[11] Castle Rock Entertainment, Inc. v. Carol Publ. Group, 150 F.3d 132 (2d Cir. 1998).

[12] Twin Peaks v. Publications Int’l, Ltd., 996 F.2d 1366 (2d Cir. 1993).

[13] Intellectual Property Office, Exceptions to Copyright, (Mar. 10, 2021, 11:17 AM), https://www.gov.uk/guidance/exceptions-to-copyright.

[14] The University of Edinburgh, Copyright Exceptions and Fair Dealing, (Mar. 10, 2021, 11:17 AM), https://www.ed.ac.uk/information-services/library-museum-gallery/library-help/copyright/copyright-exceptions-and-fair-dealing

[15] ibid.

Categories
Blog Criminal Law

Stages in Criminal Proceedings in India

By: Muskan Sharma

The Criminal Law regime in India is regulated by the following statutes:

  1. The Indian Penal Code, 1860 (hereinafter referred to as “IPC”)
  2. The Code of Criminal Procedure, 1973 (hereinafter referred to as “CrPC”)
  3. The Indian Evidence Act, 1872 (hereinafter referred to as “Evidence Act”)

The IPC provides for classification between different offences. It also provides the punishment to be awarded to a person convicted of any offence. The CrPC provides for the procedure to be followed during the proceedings to conclude the case. The Evidence Act provides what evidence is admissible and relevant during the trial.

However, studying the IPC, the CrPC, and the Evidence Act separately will not make one understand the gist of Criminal Law. It is pertinent to study these three legislations in their entirety to know about different stages in criminal proceedings in India.

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Following are the different stages in criminal proceedings in India:

  1. Commission of an Offence

Criminal proceedings take place only when an offence is committed. This stage is surely not a part of the trial. However, only the commission of an offence can lead to criminal proceedings.

  1. Information to the Police
  2. Information as to the Commission of a Cognizable Offence

After the commission of an offence, it is pertinent that the Police receive information about it. If the offence is a cognizable offence, then the Police have to act according to Section 154 of the CrPC. Section 154 (1) of the CrPC provides that information relating to the commission of a cognizable offence shall be reduced in writing by the officer-in-charge of the concerned Police Station and must be read over to the informant. The person, who provided such information, must sign on it.

Section 154 (2) provides that a copy of such FIR shall be given free of cost to the informant. In case the officer-in-charge of a Police Station refuses to record such information, the concerned person may then write the substance of such information and post it to the Superintendent of the Police. If the Superintendent of the Police is satisfied that such information discloses the commission of a cognizable offence, he shall either investigate the case himself or direct an officer in subordination to him, to investigate such a case.

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  1. Information as to the Commission of a Non-Cognizable Offence

If in case, an officer-in-charge of a Police station receives information about the commission of a non-cognizable offence, he must prepare NCR i.e. Non-Cognizable Report which contains all the information of such offence reduced into writing. In Non-cognizable offences, the Police cannot arrest a person without a warrant. However, if a person is accused of committing a cognizable offence, the police can arrest him even without a warrant.

If the information provided to the officer-in-charge of the Police station discloses that the act of the accused person is partly a cognizable offence and partly a non-cognizable offence, then it will be considered as a Cognizable Offence.

  1. Investigation by Police

Chapter XII of the CrPC provides for the investigation of an offence by the Police. Section 156 of the CrPC empowers a police officer to investigate a cognizable case without the order of a Magistrate. Further, Section 156 (2) provides that the no proceedings handled by a police officer in such a case cannot be called into question on the ground that the officer was not empowered to investigate the case under this section. A Magistrate may order the investigation of such a case under Section 190, CrPC.

Section 157 of the CrPC provides for the procedure to be followed for investigation. It states that when the officer-in-charge of a Police Station is empowered under Section 156, he must send a report to the Magistrate empowered to take cognizance of such offence on a report by the Police and either proceed in person or depute any of his subordinate officers to investigate the facts and circumstances of the case. However, provisos to Section 157 (1) provide that an officer-in-charge must refrain from investigating the case if the offence is not of a serious nature or if there is no sufficient ground for entering into the investigation. The concerned officer-in-charge must state reasons for not complying or not investigating the case in his report, as provided by Section 157 (2) of the CrPC.

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The purpose behind the conduct of the investigation by the Police is to obtain the following:

  1. Evidence
  2. Attendance of Witnesses
  3. Interrogation statement of the accused
  4. Statement of Witnesses
  5. Expert Opinion

However, the procedure to be followed in the course of the investigation may be different in special categories of cases or if the procedure cannot be completed in 24 hours.

  1. Anticipatory Bail

Anticipatory bail is a direction from the Court to release a person on bail even before the arrest. In Balachand Jain v. State of MP, the Court has described anticipatory bail as ‘bail in anticipation of arrest’.

In Gurbaksh Singh Sibbia v. State of Punjab, the Supreme Court observed that the court must be satisfied that the person invoking Section 438 (1) of the CrPC shall have reasons to believe that he will be arrested for non-bailable offence and his belief must be based on reasonable grounds.

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The Court must provide anticipatory bail after taking into consideration the following factors:

  1. The Gravity of the alleged offence.
  2. Antecedents of the person applying for anticipatory bail i.e. whether he has been previously convicted of a cognizable offence.
  3. If the accused person can flee from justice.
  4. Where the accusations are backed by the intention of causing injury or humiliation to the accused.

The Court may also impose the following conditions to be fulfilled by the accused when seeking an order of anticipatory bail:

  1. He must be available for interrogation by the police officer, as and when required.
  2. He must not, directly or indirectly, induce, give threats, or promise to any person acquainted with the facts of the case to dissuade him from disclosing such facts to the Court or to any police officer.
  3. He must not leave India without the permission of the Court.
  4. Arrest of the Accused

The Police officer may arrest the accused person without the warrant if the offence is of cognizable nature. However, the concerned police officer must obtain the approval of the Magistrate in the form of a warrant if the alleged offence is of non-cognizable nature.

  1. Production of the Accused to the Magistrate

After the accused person is arrested, the concerned police officer must produce the accused before the Magistrate within 24 hours of the arrest as stated in Article 22(2) of the Indian Constitution. Hence, an arrested person has a fundamental right to be produced before the Magistrate within 24 hours of arrest.

  1. Remand

If the accused person is arrested and the investigation cannot be completed within 24 hours, then such person is to be produced before a Magistrate for extension of Police or Magisterial Custody.

  1. Closure Report

A closure report is filed when upon the investigation, it is discovered that no offence can be made out. Also, the accused person must be released under Section 169 of the CrPC in such cases.

  1. Filing of Charge sheet

However, a Charge sheet must be filed according to Section 173 of the CrPC if, upon the investigation, it is discovered that an offence appears to have been committed. The Charge sheet must contain all the charges to be leveled against the accused person.

  1. Cognizance by Magistrate

After a charge sheet is filed under Section 173 of the CrPC, a Magistrate is empowered to take cognizance of such offence under Section 190 of the CrPC. Section 190 (2) further provides that a Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance of any such offence within his competence to try.

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  1. Service of Summon/Warrant

The Court then serves to summon or warrant to the accused person to present himself before the Court. A Summon or Warrant is issued with the aim to compel the appearance of accused persons under Chapter VI of the CrPC.

Section 61 of the CrPC provides that Summon issued by a Court shall be reduced to writing in duplicate signed by the presiding officer or any such officer prescribed by the High Court, and it must have the seal of the court.

Section 70 of the CrPC describes the form of a warrant of arrest. Every warrant issued shall be in writing, signed by the presiding officer of such Court and must bear the seal of the Court. Such warrant shall remain in force until cancelled by the Court or until executed.

  1. Bail Application

A Bail Application is filed before the Court under Form No. 45 of the Second Schedule to release the accused person from custody. The accused person can be granted bail only if he furnishes bond and sureties before the Court.

The procedure to obtain bail is different in bailable and non-bailable offences.

  1. Bail in Bailable offences

Section 436 of the CrPC provides for the procedure to obtain bail in bailable offences. Section 436 provides that in case of bailable offences, the accused person can be released on bail. However, such officer or Court may, if deem it reasonable to do so, instead of taking bail, discharge him by executing a bond without sureties for his appearance.

Section 436 (2) further provides that if a person does not comply with any of the provisions of the bail bond regarding the time and place of his attendance, the Court is empowered to refuse to release him on bail. Such refusal shall be considered without prejudice to the powers of the Court to call upon any person bound by the bond to pay penalty under Section 446.

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Further, Section 436A has been inserted in the CrPC in 2005 for the undertrial prisoners. It says that if a person has already completed half of the maximum sentence to be awarded for the alleged offence, then he must be released on personal bond with or without surety.

  1. Bail in Non-bailable offences

Where it is alleged that the accused person has committed a non-bailable offence, he may be released on bail.

The Court may refuse to grant the bail in the following cases:

  1. There are reasonable grounds to believe that he is guilty of an offence punishable with death or imprisonment for life.
  2. The alleged offence is cognizable and the accused person is previously convicted of an offence punishable with death, imprisonment for life, imprisonment for seven years or more, or has been convicted twice or thrice of a non-bailable and cognizable offence. However, the Court may release such an accused person on bail if it is just and proper to do so for any other reason. It has been further provided that identification by witnesses is no sufficient ground for refusal to grant bail if the accused person is otherwise entitled to be released on bail.

Also, the Court may not refuse bail to a person below sixteen years of age, a woman, sick or infirm person.

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Section 437(2) further provides that if there are no reasonable grounds to believe that the accused has committed a non-bailable offence but sufficient grounds for further inquiry into his guilt are there, the accused may be released on bail, subject to Section 446A, or execution of a bond by him without sureties for his appearance.

Section 437 (3) says that a person accused of an offence punishable with imprisonment which may extend to seven years or more in Chapter VI, Chapter XVI, or Chapter XVII of the IPC or abetment of, or conspiracy or attempt to commit such offence, the Court may impose any condition while releasing the person on bail.

  1. Plea of Guilty/Not Guilty

The Court, before commencing the trial, must ask the accused person whether he wishes to plead guilty or not guilty. The Court may convict the person on his plea of guilty under Section 253, CrPC. This provision has been inserted in the Criminal Law regime so the speedy delivery of justice can be made effective.

  1. Commencement of Trial

The Trial of a case is said to be commenced when it is posted for the examination of witnesses. A Trial may be classified into the following categories:

  1. Sessions Trial
  2. Warrant Trial
  3. Summons Trial
  4. Summary Trial
  5. Stages of Evidence of Prosecution

The prosecution is required to prove the guilt of the accused through the examination of witnesses and documentary evidence. It involves Examination of Chief, Cross-examination, and re-examination. This whole cycle is known as ‘examination-in-chief’.

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After this, the Court records the statement of the accused person under Section 313 of the CrPC. The accused is given the opportunity of being heard and explain the facts and circumstances of the case. The defence is then, asked to present any evidence before the Court that may support the acquittal of the accused person. Usually, the burden of proof is on the prosecution, the defence is rarely asked to present evidence before the Court.

  1. Final Arguments

After examining all the evidence and other relevant facts and circumstances, the court decides upon what questions are to be addressed during the final arguments of the case. The Public Prosecutor and the Defence Counsel both present their arguments to the Court on the disputed issues.

  1. Judgment

After hearing final arguments from both sides, the Court has to deliver judgment addressing if the accused is convicted or acquitted, the quantum of punishment if convicted, grounds of conviction/acquittal, etc.

The Judgment must be clear and precise. It should state the facts of the case, arguments presented by the Counsel from both sides, acquittal/conviction of the accused, and grounds for the same.

  1. Appeal

After the judgment is delivered by the Court, the aggrieved party may file for an appeal. Before the appellate court, arguments of both sides are placed. The Appellate Court, then decides if the judgment rendered by the subordinate court had any merits or not.

  1. Revision

The aggrieved party may alternatively file a Revision petition to prevent a faulty judgment from being enforced.

  1. Execution

The last stage is the execution of the orders of the Court. The stage of execution is when all the remedies of appeal, revision, etc. are exhausted and the decision is final.

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Categories
Blog

Role of Technology in Law Enforcement

By: Himali Sylvester

Technological development has secured a merry place in the world today. Its development has seeped into various domains of human life and the legal discipline is no exception to this common phenomena. It can then conveniently be said that technology has now become the edifice of democratic polity. As the unprecedented Covid-19 pandemic meddled with the everyday lives of billions of people across the world, the globe turned into a remote world which could only be run by technology. In this aftermath, the utility of technology has become all the more palpable. It is now important for us to examine as to how technology has been impactful in the process of law enforcement.

Evidence Law

It is pertinent to be reminded right at the outset, that the arena of law is also largely governed by data and information. So, to begin with, electronic records serve largely in enforcing laws. With the introduction of computers, electronic writing and messaging have become common. A small benefit from technology was reaped when the definition of a ‘document’ was expanded to also include ‘electronic documents’ as under Section 3(2) of the Indian Evidence Act. This makes the enforcement of evidence law more efficacious as e-documents are easier to obtain, collect and produce before the Court. Collection of physical evidence is a time-consuming process and requires person to person contact. Understandably so, in a world shunned by an uninvited virus, avoiding physical contact is a prime concern which has been achieved by technology that allows for the procurement of electronic proof and documents. Additionally, e-documents are easier to be stored, they reduce physical space and are often more portable in comparison to physical documents. Such documents can easily be exchanged in courts as well as by lawyers and enforcement agencies in a very short span of time.

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It should be noted that the question about the admissibility of e-documents had been challenged before the hon’ble Supreme Court of India, as under Section 65-B of the Indian Evidence Act. It was then affirmed that any e-evidence or e-document produced before the Court must be accompanied by a certificate of authenticity issued by a reliable authority. It was at this juncture that Senior Advocate Jayant Bhushan said that section 65B of the Evidence Act was a “procedural provision” intended to “supplement the law” by declaring that any information in an electronic record, “is admissible in any proceedings without further proof of the original“[1]. The aforementioned statement is testimony to the fact that technology has been accepted as an essential component for the enforcement of evidence law in India.

Contract Law

The other important technological development that has helped in law enforcement is the acceptance or recognition of e-signatures as valid signatures under the Information Technology Act, 2000 (hereinafter IT Act). Signature is an imperative component for any legal work and lot of time that was invested in obtaining physical signatures has been minimized after the legalization of e-signatures[2]. It has become much more easier to enter into contracts, the process of availing attestation has become more convenient, thus, implying that the development of e-signatures as a result of technological advancement has helped in enforcing agreements.

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In the case of Tamilnadu Organic Private Ltd. & Ors. v. State of Bank of India[3], the Madras High Court observed that contractual liabilities could arise by way of electronic means and such contracts could be enforced through law. The High Court further observed that Section 10A of the IT Act enables the use of electronic records and electronic means for the conclusion of agreements, contracts and other purposes. Succinctly put, the contract jurisprudence has benefited immensely from technological progress.

A contract entered through email is valid with a second factor authentication such as PIN or Password provided that the requirements of the IT Act are satisfied. The same was held in the case of Trimex International Fze Limited, Dubai v. Vedanata Aluminium Limited[4] wherein the hon’ble Supreme Court held that unconditional offer and acceptance through emails constituted a valid contract under the Indian Contract Act, 1872. Implied contracts are also equally relevant in e-contracts. To illustrate, if an employee acts upon an e-employment contract and shows up to work and carries out her duties according to the contract, she cannot dispute the existence of a contract merely because the contract was entered into by email or other e-communication platforms. In a nutshell, it can also be said that entering into contracts has become more expedient with the emergence of advanced e-communication systems, thus, having a positive impact on the enforcement of contract law.

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Technological development however, does obscure the conventional contract law. According to contract law, an offer is considered complete when the offeree is made aware of the offer and the acceptance is considered complete as against the offeror when it is put into transmission so as to be outside the control of the acceptor and it is considered complete as against the acceptor, when it comes to the knowledge of the offeror. It must be borne in mind that such provisions were laid down at a time when sending letters and posting them, was the most common form of communication. In a world overwhelmed by emails and other social media platforms, it is often difficult to determine as to when the offer has actually reached the offeree. For instance, when an offer is made via email, when should it be considered that the offer is complete? When the mail gets delivered or when the mail is actually read by the offeree? These are confusing questions that emerge while interpreting and seeking to enforce a contract and the present contract law in most countries has not accommodated these provisions. Understandably so, the enforcement of contract law has been hindered by technological evolution as law does not change and adapt itself at the same pace as technology does.

Intellectual Property Law

Another apposite legal discipline that has been largely hit by technological advancement, is the intellectual property regime. The need for a stringent copyright law has become imperative with the advent of technology. But the question remains as to whether traditional copyright laws can be enforced to protect copyrights in a world reigned largely by technology? Scholars suggest that the growing use of computers to handle and store information could make it even harder for copyright holders to enforce their rights. This is because, copying digital information can be done at a fraction of the cost and in a fraction of the time that it takes with photocopying or analog audio or video taping[5]. Secondly, the digital nature of computer-sourced information suggests that an infinite number of copies of material can be made. Such a distinctive nature of computers makes it difficult for copyright holders to control any infringement of copyrights. Besides by appealing to consumer ethics, it is often impossible to determine, at what point can an act be considered as a violation/infringement of copyrights, while the user is still in possession of the copyrighted material.

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A rapidly growing amount of material is being made available through on-line databases. But this is  changing with other technological advances that simplify the conversion of printed text and graphics into machine-readable, digital format. Optical character readers for text input are becoming popular in offices as they are cheap and more efficient. If the costs of converting printed and written texts and graphics into computer-readable forms become cheap and it is proven that is it more efficient, such a practise will become a routine. The digital optical disk, uses lasers to record and read information off a disk and rotates at a high rate of speed, offers great potential for storing very large volumes of digitized information. Geosynchronous communication relay satellites affect the enforcement of copyright law because an increasing amount of copyrighted material is being transmitted by these systems. As of now, anyone who has a proper antenna‘dish’ and a down converter can receive the material.

Manifestly so, traditional meaning cannot be applied to the nuanced circumstances that surround copyrights, currently. The legal premise of ‘rights’ itself have changed with the technological bloom. The meaning of ‘fair use’ of those rights obviously change as duplication of copyrights is not the same with computer-mediated storage provisions. Consequently, various attributes of infringement have also changed. The legal recourse bequeathed upon the copyright holders have changed with technological progress, thus, affecting the enforcement of copyright law.

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Criminal Law

The year 2018 saw 32,700 cases of culpable homicide and murders in India and sadly, the trajectory of such cases has only been leaning upwards ever since[6]. A prudent understanding of the above statistics would suggest that criminal law enforcement needs to be expedited in order to promote security and prevent public disorder. Technology will certainly play a crucial role in enforcing criminal laws. The invention of CCTV cameras for monitoring and surveillance of public places as well as police stations has been pivotal in fending off offenses. Certain states have enacted laws to allow for video surveillance. The Karnataka Public Safety (Measures) Enforcement Act, 2017 and Andhra Pradesh Public Safety Act, 2013 make it mandatory for crowded places to provide for public safety measures which primarily includes Closed Circuit Television Surveillance (CCTV Surveillance)[7]. Both the Acts are premised upon the objective of tracking and detecting crimes and other criminal activities, indicating the role that CCTV cameras and video surveillance have in enforcing criminal laws in India.

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Video surveillance also has role in the process of investigation. In the case of Shafhi Mohammad v. State of Himachal Pradesh[8] the Apex of India directed to set up Central Oversight Body (COB) to implement plan of action for using videography in the  crime  scene during investigation. Earlier in the case of D.K. Basu v. State of West Bengal and Ors.[9], a need was also directed to have in every State an oversight mechanism whereby an independent committee can study the CCTV camera footage and periodically publish a report of its observations thereon. CCTV cameras can certainly be considered the boon of technology for the immense help that it continuous to render in curbing crime rates in India.

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Law enforcement agencies are using drones for a variety of functions providing cost-effective solutions. They can provide real-time information to police and crime investigators about crimes in progress and dangerous situations, as they unfold. It helps the police force to be prepared to face situations. The Global Positioning System (GPS) has also helped in rescuing victims as well tracking criminal suspects. Unsurprisingly so, enforcement of criminal laws has become prompt and there has been a frequent application of these laws after the invention of CCTVs, GPS systems and drone technology. These technologies sometimes do pose privacy challenges, most of which remain unaddressed even in the Justice Puttuswamy judgement. The extent to which movements and actions can be monitored and surveilled is yet to ascertained legally. Until then, the privacy discourse will continue to be debated.

Conclusion

It would be an understatement to assert that technology has a role to play in law enforcement. Technology and technological progress are pivotal for the efficacious enforcement of law. To the Indian context, e-documents, e-signatures and e-contracts are certainly developments that have aided in enforcing laws. The intellectual property regime has also begun to respond to technological advancements. But above all, if there is one domain that has benefited the most from technology, it is the domain of criminal law enforcement. Advance videography and audiography being used to monitor criminals and the same being admissible as evidence is a leap-forward in efficiently fostering the application of evidence law and criminal law.

[1] THE ECONOMIC TIMES,

https://economictimes.indiatimes.com/news/politics-and-nation/courts-can-rely-on-electronic-records-without-certificate-supreme-court/articleshow/62777759.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst (last visited Feb. 27, 2021).

 

[2] Trilegal, Electronic signatures in India, ADOBE SIGNS (Feb 27, 2021, 21:46 PM IST), https://www.adobe.com/content/dam/dx-dc/pdf/uk/electronic-signatures-in-india-uk.pdf.

[3] Tamilnadu Organic Private Ltd. & Ors. v. State of Bank of India AIR 2014 Mad 103.

[4] (2010) 3 SCC 1.

[5] PRINCETON EDU, https://www.princeton.edu/~ota/disk2/1986/8610/861007.PDF (last visited Feb. 27, 2021). .

[6] TNN, Crime rates drop but not for women, kids, THE TIMES OF INDIA (Jan. 13, 2020, 16:57 IST), https://timesofindia.indiatimes.com/india/crime-rate-drops-but-not-for-women-kids/articleshow/73187216.cms.

[7] Priti Singh and Gaurav Kumar, Why am I under CCTV surveillance?, WORDPRESS (May 16, 2020), https://jilsblognujs.wordpress.com/2020/05/16/why-am-i-under-cctv-surveillance/#_ftn1.

[8] MANU/SC/0331/2018.

[9] (1997) 1 SCC 41.

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Blog Intellectual Property Law

Trademark Registration Process in India- Checklist

By:- Rajat Nischal 

A trademark if perceived in a true layman’s sense would be referred to as a visual representation of a word, label, numeric characters, name, or device consumed by an entity in order to segregate/ distinguish its own identity/ services or goods from the previously present comparable services/goods stemming from a different entity/organization. A trademark operates its being in such a sedulous approach that it delivers an exclusive identity (i.e., an exclusive mark which a third party cannot optimize) of that specific service/good offered by that specific service provider/ entity. The moment an entity enrolls itself as a registered trademark, it transmogrifies its own self as an untouchable asset or intellectual property for an entity which is optimized in order to protect the reputation and status of that specific brand/entity.

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Considering the contemporary scenario in India, the trademarks are registered under the Trademark Act, 2016 by the Controller General of Patents Designs and Trademarks, Ministry of Commerce and Industry, Government of India. Post the registration as a trademark, the trademark owner gains a right to take legal action for damages when trademarks infringements of occur. Subsequent to a successful registration, symbol ‘R’ can be used by the trademark owner making the validation of his rights for a fixed period of 10 years. Nevertheless, the trademarks forthcoming their expiration can easily be renewed by a simple submission of renewal application.

REGISTRATION CHECKLIST

The registration procedure encompasses the following;

  • Filling up registration application form,
  • Examination of the trademark
  • Publication of the trademark
  • Advertisement of the trademark
  • Opposition (objections) if raised/ found
  • Registration of the trademark and renewal of the trademark after every 10 years.

The checklist consists of a basic necessities

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  1. SEARCHING A TRADEMARK

The applier is suggested to be cautious during the course of selection. This is because, tremendous variety of trademarks are predominantly registered and to make it indisputable, the mark should truly be unique. A thorough research on the trademarks database which is available with the trademarks registry has to be conducted before choosing a unique and exclusive trademark.  The database is a prominent option because the search discloses all the types of trademarks that are already available in the market, either registered or unregistered.

  1. FILING APPLICATION

The concerned application may be filed either in a multi or a single class. The same totally hangs to the specific service/good that the entity holds. The application Form TM-A which can be filled in either ways, may it be online or offline. For offline the applier shall visit the official trademark office depending upon the jurisdiction and for online, the applier shall refer the official intellectual property India website. The trademark application encompasses numerous documents prescribing comprehensive and detailed specifications of the trademark.

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  • EXAMINATION BY THE AUTHORITIES

After filing the application, asper the guidelines of the Trade Marks Act of 2016, an obligatory examination process of the trademark application is conducted by the government examiner.

The submissions of their examination might reveal certain objections which may be absolute or limited in nature; the aforesaid examination report by the concerned authorities is dispensed within a span of 30 days of having filed the application. In response of the same, in order to remove the objections, an obligatory rational response (including arguments and evidence) to the objections shall be submitted before the authorities.

  1. AFTER THE EXAMINATION 

Upon filing a reply to the investigation report, the authority Examiner may hold legal proceeding if the Examiner is not completely satisfied with the reply filed or if the objections are not satisfied. After the hearing, the Inspector can approve the trade mark and either forward the request for publication to the journal or refuse the application if there is still an estoppel.

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  1. MARKETING AND PUBLISHING

After the application for registration has been approved, the said trademark shall be marketed and published in the Trade Marks Journal for a term of 4 months.

The purpose of the publication and ads is to encourage the general public to file an opposition to the registration of the label. The Trade Marks Journal is accessible on the Official Registry website, which is published every Monday of the week.

  1. DISAPPROVAL

After the publication of the trademark, any person who has been aggrieved can file a notice of opposition to the registration of the published trademark. The said notice shall be filed via form TM-O within a deadline of 4 months of the actual publication in the trademark journal. In the event of opposition, all the mechanism will function asper the prescribed procedures of law (the said includes; facts, counter-statement complaint, arguments etc.).

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  • REGISTRATION

The final piece to this whole process is the successful registration of the trademark which comes after travelling journey full of estoppels.

Moreover, in the scenario where no opposition is raised towards the registration of the trademark during the 4 months publication period then, the same will get itself successfully registered within 7 working days.

CATEGORIES OF TRADEMARK UNITS IN INDIA

In India, trademarks can be registered in a multitude of forms. The same includes wordmark, label, logo, as well as device mark. As a condition, the choice to file a trademark as a word mark or logo is indeed a very challenging choice to accept.

  1. GENERIC MARK

The Generic marks denotes a very generalised explanation of their product or seller. These comprise commonly known words like “food,” “shoes” or “watch.” However, the aforesaid words are a part and parcel of the daily routine of an individual’s life and giving exclusive usage rights for such words would truly amount gross injustice to other individuals of the society. For an illustration, trademark registration for the term “restaurant” is impossible as well as irrational in its very basis. And lawfully, such sort of a registration would exhaustively upshot an unfair monopoly over the entire food and beverage industry. Henceforth, if such terms are registered, unknowingly, countless businesses will have to shut themselves down unnervingly. So, an entity if perceives to uphold a registered mark in its name it shall add another modifier exclusive to its products.

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  1. SUGGESTIVE MARK

Suggestive marks register terms that indicate the quality of a service without actually referring to it in a literal way. Imagination from the end of the user is a key factor in the identification of the mark. A good example would be Netflix, as it makes reference to its service line without explicitly mentioning that it is a video streaming network.

  1. DESCRIPTIVE MARK

While the generic mark may reflect a commodity or its supplier, the Descriptive Mark refers to just the merchandise. That being said, as these words are considered part of the common language, they are nevertheless non-registerable. However, the inclusion of a ‘signifier’ to identify and define the substantial nature of the substance may qualify it for trademark protection.

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  1. FANCIFUL MARK

This sort of trademark is the easiest one to file. It just includes a new term that does not actually have any meaning for the general public. While smoother to file.  In specific, the corporation should closely analyse how the brand will be perceived by the public. It is better to carry out careful study into whether it will be easy to recognize, read, or pronounce. Fanciful marks require informed forethought, too. Brands will most likely prefer their trade to achieve favourable characterizations, but businesses shall also acknowledge the cultural overtones of their fanciful trade mark.

  1. LOGO

A logo in its true basic sense, enshrines the trademark holder with utmost rights over the amalgamation of words, design, and images together. For an illustration; Adidas, Puma, Nike, Reebok, etc. Above and beyond this, if the customer base of the company is truly based upon its logo, then obviously the entity would prefer to register a patent on that particular logo.

The covering given to the words in the logo mark is reduced as opposed to the regular word marks so the rights in the logo are only valid as a whole. Consequently, if an entity/individual pertains a wish to register a clearly styled appearance or a union of stylized words and design, the registration of a trademark as a logo will be essential.

  1. WORD MARK

One of the most convenient and sober registration processes belongs to the word mark; a word mark is specifically designated for the name / title of the entity. For an illustration, Britannia and Jio solely possess the word of their entity as a registered mark and the said is called to be acknowledged as a word mark. Post the registration of a trademark as a word mark, the owner gains a blanket right over the usage and practice of the concerned word. The rights wholly support for the variations made in its font or writing style/size, until and unless the word is used asper and in line of the legal specifications enlisted, the word lies in the boundaries of the blanket of the rights owned by the applier.

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Blog Intellectual Property Law

The Conundrum of Priority Disputes: Isaac Newton versus Gottfried Wilhelm Leibniz

By: Rushika M 

“It is most useful that the true origins of memorable inventions be known, especially of those that were conceived not by accident but by an effort of meditation. The use of this is not merely that history may give everyone his due and others be spurred by the expectation of similar praise, but also that the art of discovery may be promoted and its method become known through brilliant examples.”[1]

-Gottfried Wilhelm Leibniz

One of the oldest and most controversial intellectual property disputes in the world is the peculiar case of Sir Isaac Newton and Gottfried Wilhelm Leibniz. As rightly described by Jason Socrates Bardi in the title of his book ‘Calculus Wars’, the dispute between Newton and Leibniz is the ‘greatest mathematical clash of all time’.[2]

The dispute between Newton and Leibniz was not an uncommon one, especially in the 17th century which has been described by the American science historian D. Meli as the “golden age of the mud-slinging priority disputes.”[3] Both men being great mathematical minds and accomplished intellectuals, claimed priority over the invention of Calculus. For those unaware, Calculus is the branch of mathematics that deals with the finding and properties of derivatives and integrals of functions, by methods originally based on the summation of infinitesimal differences.[4] In short, it is the study of continuous change.[5] Presently, the use of calculus is indispensable in many fields of science and mathematics such as physics, computer science, engineering, statistics, economics, medicine, and demography to name a few. Both, Newton and Leibniz sought to establish the same as their own invention. However, the distinguishing quality of their case is not only the nature and subject-matter of dispute but also the manner in which each sought to establish their priority.

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A brief description of the dispute is as follows. Infinitesimal calculus may be expressed in one of the two forms: (i) as a notation of fluxions or (ii) as a notation of differentials. Newton employed fluxions in his research which can be dated back to as early as 1666. However, he did not publish his work until the year 1693. On the other hand, Leibniz employed the method of using differentials and formulated his own notation which can be dated back to as early as 1675.[6] He also referenced the same in his letter addressed to Newton in the year 1677 and included it in his memoir of 1684.[7] The dispute between the two men arose when Newton claimed that Leibniz was made aware of Newton’s research long before he arrived at his own notation and hence, Newton was the first inventor of calculus, while Leibniz had only formulated another notation based on the principles and work of Newton.[8] Since the prevalent method of establishing priority in the 17th century was not in the form of first publication or registration as it is in the present era and the usual mechanisms were in the form of anagrams, sealed envelopes, correspondences or a private message exchanged between peers, etc., the dispute between Newton and Leibniz could not be effectively resolved on the basis of first publication.

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Primarily, evidence lies in favour of Leibniz’s claim of a notation independent of Newton’s for three reasons: (i) Leibniz, who is presumed to have acted in good faith, always alluded to his discovery being his original work and this claim was undisputed for a few years; (ii) his work was published long before Newton published his method of fluxions; and (iii) in his private papers, Leibniz demonstrated the originality of his derivations and their independence from Newton’s work. However, those contesting Leibniz’s claims questioned his good faith and believed that he had been acquainted with Newton’s work in or before 1675, the reason being that Leibniz frequently corresponded with a Mr. John Collins, who was not only well-acquainted with Newton’s work, but had also received copies of the same from Newtons mentor Isaac Barrow.[9] When, in 1849, C. I. Gerhardt found copies of Newton’s work in Leibniz’s manuscripts, the claims were further substantiated. However, since it is inconclusive as to when Leibniz obtained the copies, the same cannot be considered conclusive evidence in the matter. Doubts were also cast on Leibniz’s testimony when he anonymously published a slanderous review of Newton’s tract on quadrature implying that Newton had borrowed the idea of the fluxional calculus from Leibniz and when he deliberately altered or added to important documents before publishing them, and falsified a date on a manuscript.[10] In any event, the entire dispute was also tainted by a bias favouring Newton who, while serving as the President of the Royal Society, found favour in the committee report of the Society that presided over the dispute. Although the matter came to a temporary end with the death of Leibniz and the modern consensus is that both Newton and Leibniz developed their ideas independently, debates between the supporters of the two persist to this day.

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Upon a brief analysis of the above dispute, two things are evident: (i) that much of the dispute between Newton and Leibniz was caused by assumptions which were often unsubstantiated; and (ii) the evidence presented by the gentlemen was mostly testimonial or by way of hearsay. It was perhaps due to this reason that the dispute remains unresolved to this day. Or perhaps it was the nature of the dispute resolution mechanism at the time that is to blame. Irrespective of the same, what remains consistent to this day is the topical nature of priority disputes, may it be in the field of science and mathematics, or literature, or any other domain, thus resulting in the substantial growth and relevance of intellectual property laws and jurisprudence.

At present, in India, the Indian Patents Act, 1970 is the one comprehensive law that safeguards the interests of inventors or patent holders in India. The Patents Act, 1977 would be the legal authority in the European Union, including the United Kingdom of Great Britain and Northern Ireland. A priority dispute today would be resolved under the dispute resolution mechanisms of these laws and such being the case, the standard of evidence required to prove the claims of either party would be far greater than those evidenced by Newton and Leibniz during the 17th century. It is likely that the dispute would not even have persisted for as long as it did at the time. Regardless, the case of Sir Isaac Newton and Gottfried Wilhelm Leibniz is a memorable one and one of immense significance not only to academicians and scientists, but also to legal practitioners in the field of intellectual property law.

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[1] G. W. Leibniz, The Early Mathematical Manuscripts of Leibniz; Translated and with an Introduction by J. M. Child, The Open Court Publishing Company, 1920. (Reprinted by Dover Publications, 2005.)

[2] BARDI, J. S. (2006). The calculus wars: Newton, Leibniz, and the greatest mathematical clash of all time. New York, Thunder’s Mouth Press.

[3] Hans Gaab and Pierre Leich Simon Marius and His Research, Springer, 2019.

[4] Oxford Languages, Calculus.

https://www.google.com/search?q=calculus+meaning&rlz=1C1CHBF_enIN859IN859&oq=calculus+&aqs=chrome.3.69i59l2j69i57j0i433j46j69i60j69i61j69i60.4602j0j7&sourceid=chrome&ie=UTF-8

[5] Cambridge English Dictionary, Calculus. https://dictionary.cambridge.org/dictionary/english/calculus

[6] Norma B. Goethe, Philip Beeley and David Rabouin, The Interrelations Between Mathematics and Philosophy in Leibniz’s Thought,  http://ndl.ethernet.edu.et/bitstream/123456789/57413/1/19.pdf.pdf#page=119

[7] Blank, B. E. 2009 Review of J. S. Bardi: The Calculus wars. Notices of the AMS 56:602–610.

[8] Sir Isaac Newton, The Correspondence of Isaac Newton, 7 v., edited by H. W. Turnbull, J. F. Scott, A. Rupert Hall, and Laura Tilling, Cambridge University Press, 1959–1977.

[9] Supra, 6.

[10] Ibid.

Categories
Blog Cyber Laws

Landmark Cyber Law cases in India

By:-Muskan Sharma

Introduction

Cyber Law, as the name suggests, deals with statutory provisions that regulate Cyberspace. With the advent of digitalization and AI (Artificial Intelligence), there is a significant rise in Cyber Crimes being registered. Around 44, 546 cases were registered under the Cyber Crime head in 2019 as compared to 27, 248 cases in 2018. Therefore, a spike of 63.5% was observed in Cyber Crimes[1].

The legislative framework concerning Cyber Law in India comprises the Information Technology Act, 2000 (hereinafter referred to as the “IT Act”) and the Rules made thereunder. The IT Act is the parent legislation that provides for various forms of Cyber Crimes, punishments to be inflicted thereby, compliances for intermediaries, and so on.

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However, the IT Act is not exhaustive of the Cyber Law regime that exists in India. There are some judgments that have evolved the Cyber Law regime in India to a great extent. To fully understand the scope of the Cyber Law regime, it is pertinent to refer to the following landmark Cyber Law cases in India:

  1. Shreya Singhal v. UOI[2]

In the instant case, the validity of Section 66A of the IT Act was challenged before the Supreme Court.

Facts: Two women were arrested under Section 66A of the IT Act after they posted allegedly offensive and objectionable comments on Facebook concerning the complete shutdown of Mumbai after the demise of a political leader. Section 66A of the IT Act provides punishment if any person using a computer resource or communication, such information which is offensive, false, or causes annoyance, inconvenience, danger, insult, hatred, injury, or ill will.

The women, in response to the arrest, filed a petition challenging the constitutionality of Section 66A of the IT Act on the ground that it is violative of the freedom of speech and expression.

Decision: The Supreme Court based its decision on three concepts namely: discussion, advocacy, and incitement. It observed that mere discussion or even advocacy of a cause, no matter how unpopular, is at the heart of the freedom of speech and expression. It was found that Section 66A was capable of restricting all forms of communication and it contained no distinction between mere advocacy or discussion on a particular cause which is offensive to some and incitement by such words leading to a causal connection to public disorder, security, health, and so on.

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In response to the question of whether Section 66A attempts to protect individuals from defamation, the Court said that Section 66A condemns offensive statements that may be annoying to an individual but not affecting his reputation.

However, the Court also noted that Section 66A of the IT Act is not violative of Article 14 of the Indian Constitution because there existed an intelligible difference between information communicated through the internet and through other forms of speech. Also, the Apex Court did not even address the challenge of procedural unreasonableness because it is unconstitutional on substantive grounds.

  1. Shamsher Singh Verma v. State of Haryana[3]

In this case, the accused preferred an appeal before the Supreme Court after the High Court rejected the application of the accused to exhibit the Compact Disc filed in defence and to get it proved from the Forensic Science Laboratory.

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The Supreme Court held that a Compact Disc is also a document. It further observed that it is not necessary to obtain admission or denial concerning a document under Section 294 (1) of CrPC personally from the accused, the complainant, or the witness.

  1. Syed Asifuddin and Ors. v. State of Andhra Pradesh and Anr.[4]

Facts: The subscriber purchased a Reliance handset and Reliance mobile services together under the Dhirubhai Ambani Pioneer Scheme. The subscriber was attracted by better tariff plans of other service providers and hence, wanted to shift to other service providers. The petitioners (staff members of TATA Indicom) hacked the Electronic Serial Number (hereinafter referred to as “ESN”). The Mobile Identification Number (MIN) of Reliance handsets were irreversibly integrated with ESN, the reprogramming of ESN made the device would be validated by Petitioner’s service provider and not by Reliance Infocomm.

Questions before the Court: i) Whether a telephone handset is a “Computer” under Section 2(1)(i) of the IT Act?

  1. ii) Whether manipulation of ESN programmed into a mobile handset amounts to an alteration of source code under Section 65 of the IT Act?

Decision: (i) Section 2(1)(i) of the IT Act provides that a “computer” means any electronic, magnetic, optical, or other high-speed data processing device or system which performs logical, arithmetic, and memory functions by manipulations of electronic, magnetic, or optical impulses, and includes all input, output, processing, storage, computer software or communication facilities which are connected or related to the computer in a computer system or computer network. Hence, a telephone handset is covered under the ambit of “computer” as defined under Section 2(1)(i) of the IT Act.

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(ii)  Alteration of ESN makes exclusively used handsets usable by other service providers like TATA Indicomm. Therefore, alteration of ESN is an offence under Section 65 of the IT Act because every service provider has to maintain its own SID code and give its customers a specific number to each instrument used to avail the services provided. Therefore, the offence registered against the petitioners cannot be quashed with regard to Section 65 of the IT Act.

  1. Shankar v. State Rep[5]

Facts: The petitioner approached the Court under Section 482, CrPC to quash the charge sheet filed against him. The petitioner secured unauthorized access to the protected system of the Legal Advisor of Directorate of Vigilance and Anti-Corruption (DVAC) and was charged under Sections 66, 70, and 72 of the IT Act.

Decision: The Court observed that the charge sheet filed against the petitioner cannot be quashed with respect to the law concerning non-granting of sanction of prosecution under Section 72 of the IT Act.

  1. Christian Louboutin SAS v. Nakul Bajaj & Ors.[6]

Facts: The Complainant, a Luxury shoes manufacturer filed a suit seeking an injunction against an e-commerce portal www.darveys.com for indulging in a Trademark violation with the seller of spurious goods.

The question before the Court was whether the defendant’s use of the plaintiff’s mark, logos, and image are protected under Section 79 of the IT Act.

Decision: The Court observed that the defendant is more than an intermediary on the ground that the website has full control over the products being sold via its platform. It first identifies and then promotes third parties to sell their products. The Court further said that active participation by an e-commerce platform would exempt it from the rights provided to intermediaries under Section 79 of the IT Act.

  1. Avnish Bajaj v. State (NCT) of Delhi[7]

Facts: Avnish Bajaj, the CEO of Bazee.com was arrested under Section 67 of the IT Act for the broadcasting of cyber pornography. Someone else had sold copies of a CD containing pornographic material through the bazee.com website.

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Decision: The Court noted that Mr. Bajaj was nowhere involved in the broadcasting of pornographic material. Also, the pornographic material could not be viewed on the Bazee.com website. But Bazee.com receives a commission from the sales and earns revenue for advertisements carried on via its web pages.

The Court further observed that the evidence collected indicates that the offence of cyber pornography cannot be attributed to Bazee.com but to some other person. The Court granted bail to Mr. Bajaj subject to the furnishing of 2 sureties Rs. 1 lakh each. However, the burden lies on the accused that he was merely the service provider and does not provide content.

  1. State of Tamil Nadu v. Suhas Katti[8]

The instant case is a landmark case in the Cyber Law regime for its efficient handling made the conviction possible within 7 months from the date of filing the FIR.

Facts: The accused was a family friend of the victim and wanted to marry her but she married another man which resulted in a Divorce. After her divorce, the accused persuaded her again and on her reluctance to marrying him, he took the course of harassment through the Internet. The accused opened a false e-mail account in the name of the victim and posted defamatory, obscene, and annoying information about the victim.

A charge-sheet was filed against the accused person under Section 67 of the IT Act and Section 469 and 509 of the Indian Penal Code, 1860.

Decision: The Additional Chief Metropolitan Magistrate, Egmore convicted the accused person under Section 469 and 509 of the Indian Penal Code, 1860 and Section 67 of the IT Act. The accused was subjected to the Rigorous Imprisonment of 2 years along with a fine of Rs. 500 under Section 469 of the IPC, Simple Imprisonment of 1 year along with a fine of Rs. 500 under Section 509 of the IPC, and Rigorous Imprisonment of 2 years along with a fine of Rs. 4,000 under Section 67 of the IT Act.

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  1. CBI v. Arif Azim (Sony Sambandh case)

A website called www.sony-sambandh.com enabled NRIs to send Sony products to their Indian friends and relatives after online payment for the same.

In May 2002, someone logged into the website under the name of Barbara Campa and ordered a Sony Colour TV set along with a cordless telephone for one Arif Azim in Noida. She paid through her credit card and the said order was delivered to Arif Azim. However, the credit card agency informed the company that it was an unauthorized payment as the real owner denied any such purchase.

A complaint was therefore lodged with CBI and further, a case under Sections 418, 419, and 420 of the Indian Penal Code, 1860 was registered. The investigations concluded that Arif Azim while working at a call center in Noida, got access to the credit card details of Barbara Campa which he misused.

The Court convicted Arif Azim but being a young boy and a first-time convict, the Court’s approach was lenient towards him. The Court released the convicted person on probation for 1 year. This was one among the landmark cases of Cyber Law because it displayed that the Indian Penal Code, 1860 can be an effective legislation to rely on when the IT Act is not exhaustive.

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  1. Pune Citibank Mphasis Call Center Fraud

Facts: In 2005, US $ 3,50,000 were dishonestly transferred from the Citibank accounts of four US customers through the internet to few bogus accounts. The employees gained the confidence of the customer and obtained their PINs under the impression that they would be a helping hand to those customers to deal with difficult situations. They were not decoding encrypted software or breathing through firewalls, instead, they identified loopholes in the MphasiS system.

Decision: The Court observed that the accused in this case are the ex-employees of the MphasiS call center. The employees there are checked whenever they enter or exit. Therefore, it is clear that the employees must have memorized the numbers. The service that was used to transfer the funds was SWIFT i.e. society for worldwide interbank financial telecommunication. The crime was committed using unauthorized access to the electronic accounts of the customers. Therefore this case falls within the domain of ‘cyber crimes”. The IT Act is broad enough to accommodate these aspects of crimes and any offense under the IPC with the use of electronic documents can be put at the same level as the crimes with written documents.

The court held that section 43(a) of the IT Act, 2000 is applicable because of the presence of the nature of unauthorized access that is involved to commit transactions. The accused were also charged under section 66 of the IT Act, 2000 and section 420 i.e. cheating, 465,467 and 471 of The Indian Penal Code, 1860.

  1. SMC Pneumatics (India) Pvt. Ltd. vs. Jogesh Kwatra[9]

Facts: In this case, Defendant Jogesh Kwatra was an employee of the plaintiff’s company. He started sending derogatory, defamatory, vulgar, abusive, and filthy emails to his employers and to different subsidiaries of the said company all over the world to defame the company and its Managing Director Mr. R K Malhotra. In the investigations, it was found that the email originated from a Cyber Cafe in New Delhi. The Cybercafé attendant identified the defendant during the enquiry. On 11 May 2011, Defendant was terminated of the services by the plaintiff.

Decision: The plaintiffs are not entitled to relief of perpetual injunction as prayed because the court did not qualify as certified evidence under section 65B of the Indian Evidence Act. Due to the absence of direct evidence that it was the defendant who was sending these emails, the court was not in a position to accept even the strongest evidence. The court also restrained the defendant from publishing, transmitting any information in the Cyberspace which is derogatory or abusive of the plaintiffs.

Conclusion

The Cyber Law regime is governed by the IT Act and the Rules made thereunder. Also, one may take recourse to the provisions of the Indian Penal Code, 1860 when the IT Act is unable to provide for any specific type of offence or if it does not contain exhaustive provisions with respect to an offence.

However, the Cyber Law regime is still not competent enough to deal with all sorts of Cyber Crimes that exist at this moment. With the country moving towards the ‘Digital India’ movement, the Cyber Crimes are evolving constantly and new kinds of Cyber Crimes enter the Cyber Law regime each day. The Cyber Law regime in India is weaker than what exists in other nations.

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Hence, the Cyber Law regime in India needs extensive reforms to deal with the huge spike of Cyber Crimes each year.

[1] “Crime in India – 2019” Snapshots (States/UTs), NCRB, available at: https://ncrb.gov.in/sites/default/files/CII%202019%20SNAPSHOTS%20STATES.pdf (Last visited on 25th Feb; 2021)

[2] (2013) 12 SCC 73

[3] 2015 SCC OnLine SC 1242

[4] 2005 CriLJ 4314

[5] Crl. O.P. No. 6628 of 2010

[6] (2018) 253 DLT 728

[7] (2008) 150 DLT 769

[8] CC No. 4680 of 2004

[9] CM APPL. No. 33474 of 2016

Categories
Blog Intellectual Property Law

Theories of Intellectual Property Rights

By: Vallabhi Rastogi

INTRODUCTION

With the introduction and implementation of ‘Digital India’, major segment of the Indian population has shifted to undertaking online transactions and availing the services offered over the internet. This shift is also because the Government has offered additional benefits for online transactions so as to promote digitization. This increased use of internet has largely exposed Intellectual Property to several risks since it has made “illegitimate copying and reproducing quite easier.”[1] According to World Intellectual Property Organization, “Intellectual Property (IP) refers to creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce”. Intellectual property being intangible needs to be protected by law in the same sense as corporeal property and therefore, copyright, patent, trademark, trade secrets are some mechanisms under intellectual property rights (IPR) that protect novel innovation from being imitated without permission.

IPR is not a recent concept rather it has evolved a lot subsequent to the industrial revolution in Europe when industrial advancement was at its peak. However, codification of laws relating to intellectual property started in the 19th century. Since then, “IPR have been instilling confidence among creators that their intellectual property is protected, thereby encouraging further innovations.”[2]

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IPR has played a significant role in keeping original ideas and technical productions safe from being illegally copied and manipulated and has fostered creativity and innovations. In order to safeguard such intangible property, many industries across the globe have resorted to IP rights. Sports, Information Technology, Fashion industry, Entertainment, Biotechnology, Pharmaceutical industry are some of those sectors that have readily adapted IPR with the view of legally “safeguarding ownership, thereby, providing distinct identity”[3] and encouraging innovators to conceive and create more ideas.

Intellectual Property Rights acts as a motivation by instilling a sense of trust and ownership in the creators as their creations are safe even when available over the internet. Considering the technological advancement and innovative creations in the current times, it has become a necessity to legally protect them and therefore, enforcement of intellectual property rights backs such inventions and artworks.

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THEORIES OF INTELLECTUAL PROPERTY RIGHTS

Intellectual Property and the importance of IPR traces its origin back to and relevance from the theories of renowned philosophers such as John Locke, Immanuel Kant, John Stuart Mill, Jeremy Bentham, Georg Hegel, etc. The ideologies and theories propounded by them act as the supporting pillar of the jurisprudential aspect of intellectual property rights. The theories of IPR that this paper will talk about are

  1. The Natural Rights Theory
  2. Ethic and Reward Theory
  3. Utilitarian or Incentive Theory
  4. Personhood Theory

 

THE NATURAL RIGHTS THEORY

This theory is fundamentally based on John Locke’s concept that an owner possesses a natural right over the things that he produces with the help of his own labor and efforts, either physical or intellectual. Therefore, ownership arises from the labor and innovation of person creating it. Locke believed that “individuals are entitled to control the fruits of their own labor. In his perspective, a person, who cultivates crops by using his own labor or creates a new invention by putting his efforts, naturally obtains property rights,”[4] merely by the virtue of adding his own labor. Similarly, the natural rights theory of intellectual property reflects that an individual naturally acquires ownership of the artwork that he creates or literary work that he authors because he added his own intellectual labor in it.

Locke based his theory on the idea that when a person puts his labor in an unowned object, his labor gets amalgamated with the new object that is then created, which cannot be separated without causing damage to the novel creation thus made. The creator then acquires natural rights over the object in which he applied his intellectual labor. Once the person acquires the property right, his original creation is protected from being used, transferred or manipulated by another person. Any such breach of the intellectual property right of the creator / owner would be against the law.

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ETHIC AND REWARD THEORY

An owner or creator is legally protected under IPR for his novel creations by granting him exclusive rights over the work he produces. These exclusive rights include the right to enjoy the property, exclude others from enjoying it and to dispose the property in any manner he likes. The creator is rewarded for contributing to the welfare of the society by producing his work, however, when an ethical or moral perspective is involved while rewarding it falls under this theory of intellectual property rights. This theory emanates from the concept that granting exclusive rights on an original work are “an expression of gratitude to an author for doing more than the society expects or feels that they are obliged to do.”[5] It implies that other than the profit or remuneration for his production, if any, the individual should also be granted exclusive legal rights over the property so produced since he contributed for the betterment of community.

Ethic and Reward Theory suggests that for producing the original work, the creator might have been given some reward in form of royalty or otherwise, and then the creator should be rewarded again with exclusive legal rights over his novel production since he contributed something for ‘social utility’ that would benefit the society at large. The thinkers supporting this theory believe that the individual who put his intellectual labor for social good must be fairly compensated with his contribution being respected and this can be done by granting him exclusive rights. These exclusive rights act as moral and ethical rewards since the creator would be legally protected under IPR.

Critiques against this theory have contended that just like a person is not punished twice for doing something offensive that causes displeasure to the people similarly, a person who has contributed to the society should also not be rewarded twice.

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UTILITARIAN OR INCENTIVE THEORY

Utilitarianism is “greatest good for the greatest number” which basically implies happiness of the maximum number of people. Therefore, the conduct which causes happiness of a large number of people should be appreciated and promoted whereas the conduct which causes displeasure to the society should be avoided or discouraged. Propounded by Jeremy Bentham and John S. Mill, the concept of utilitarianism helps in socio-cultural and economical progress. Likewise, while inferring it in intellectual property utilitarian concept plays a significant role.

As and when a person creates a product or there is technological innovation within a community, the society benefits from the advancement and progress. Since this progress benefits and causes happiness of the society at large, such innovation and creations are to be promoted and encouraged.  Such encouragement can be done by granting exclusive rights to the creator as he has worked hard to empower the society and cause pleasure to the maximum number of people. This will not only create a sense of motivation to put in more efforts but would also make him believe that he and his work are rightfully respected and recognized. Therefore, the authorities or administration are expected to grant such rights and recognize their efforts.

However, while creating and designing the work, the cost of production might be too high. So, the incentive given to the creator might not be sufficient enough to cover the costs incurred. This might discourage the creator as well, thus, preventing him to further experiment and produce.

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PERSONHOOD THEORY

This jurisprudential theory was propounded by famous thinkers like Immanuel Kant and Georg Hegel. Personhood theory of intellectual property rights states that while applying labor to produce some work, a person also incorporates some part of his personality in the creation. An “individual’s personality growth is inherent”[6] and thereby, constitutes an integral part of the creative works. Since exclusive property rights are granted over the creative works and original productions, the creator also gains rights over the personality that is developed during the process. This right to “protect the development of personality extends to material things”[7] as well.

These rights emphasize more on preserving and safeguarding interests related to personality rather than merely protecting the monetary interests. Other than the right to fiscal advantage, the maker should also be given the right to safeguard his personality infused with the creation. Intellectual Property Rights should include protection of both creativity and every other thing incorporated in it.

There exists a loophole in this theory if we consider the fact that once the original work is produced, it is distinct from the creator. As the work becomes available to the public, it is up to them as how they receive and treat it. Therefore, it is not dependent on the person creating it.

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CONCLUSION

It is a well-established fact that Intellectual Property Rights have been quite effective and successful in protecting the novel creations that have facilitated in the upliftment and growth of any nation. They have bolstered and encouraged the society to produce more. It is quite evident that in this age of technological development and increased creation of artworks, competitiveness has found its way. As a result, people might indulge in unfair practices to manipulate or copy other’s creations or use them illegitimately to create something new. To mitigate such incidences, intellectual property rights through patents, trademarks, copyrights and trade secrets have found a permanent place. It ensures that there is no unhealthy competition or any kind of unfair practices. Intellectual Property rights acts as incentives to the individuals who are in the field of research and experimentation. Such encouragements give them a feeling of recognition. These rights not only provide ownership right but also recognize and reward them for their efforts and labor. It protects the economic interests of creators as well.

Each theory has its own approach and perspective of inferring intellectual property rights. There is no specific right or wrong with regards to a theory. Different individuals might relate and favor different theories.

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There has been a recent surge in the requirement and use of IPR laws in India. Indian Courts of Law have been reasonably strict in regulating intellectual property rights and awarding punitive damages to deter further infringement. “Prioritizing IPR has become necessary for socio-economic development.”[8]

Based on these theories there are some loopholes and incongruities which need to be looked into. Moreover, with changing times and continuous advancement, there can be several challenges which the existing IPR laws might have to cope with. The coming years would be very essential to evaluate the progress and improvisation of domestic IPR laws in comparison with the international ones. It would be interesting to see how IPR laws unfold in the upcoming years.

[1] The Effects of the Internet on Intellectual Property Rights, SACRAMENTO INTELLECTUAL PROPERTY LAW BLOG (Mar 27, 2017). https://www.petersonwatts.com/blog/2017/03/the-effects-of-the-internet-on-intellectual-propertyrights/#:~:text=Patents%2C%20trademarks%20and%20copyrights%20are,protected%20to %20the%20fullest%20extent.

[2] Varun Sharma & Gautam Kumar, Patent Litigation – Trend and Development, CHAMBERS AND PARTNERS, (2020).https://practiceguides.chambers.com/practice-guides/patent-litigation-2020/india/trends-and-developments.

[3]Singh and Associates, India: Role of IPR in Sports, MONDAQ (May 22, 2019). https://www.mondaq.com/india/sport/808132/role-of-ipr-in-sports

[4] Adam Moore & Ken Himma, Intellectual Property, Stanford Encyclopedia of Philosophy (Oct 10, 2018) https://plato.stanford.edu/entries/intellectual-property/.

[5] L. BENTLY & B. SHERMAN, INTELLECTUAL PROPERTY LAW 36 (3RD ED. 2008).

[6] Jane Secker, Considering Theories of Intellectual Property on World IP Day, UK COPYRIGHT LITERACY, (2018), https://copyrightliteracy.org/2018/04/26/considering-theories-of-intellectual-property-on-world-ip-day/.

[7] Mikhalien du Bois, Justificatory Theories for Intellectual Property Viewed Through the Constitutional Prism, PER/PELJ (2018). http://www.scielo.org.za/pdf/pelj/v21n1/19.pdf.

[8] Varun Sharma & Gautam Kumar, Patent Litigation – Trend and Development, CHAMBERS AND PARTNERS, (2020).https://practiceguides.chambers.com/practice-guides/patent-litigation-2020/india/trends-and-developments.

Categories
Criminal Law

Plea Bargaining in India and USA -A Comparative Study

By: Muskan Sharma

Concept of Plea Bargaining

Plea Bargaining is a process where the accused is asked to plead guilty in exchange of the judge acting lenient while awarding punishment or considering the seriousness of the offence. It is derived from the Latin phrase ‘Nolo Contendere’ which means ‘I do not wish to contend’ i.e. a plea of ‘No contest’. Plea Bargaining is a situation where the accused admits that the charges levelled against him are true and that he will not contend a query to the Court to decide over his guilt.

The concept of Plea Bargaining was not originally introduced into the Indian legal system but into USA. However, the Law Commission’s efforts promoted the insertion of the provisions concerning Plea Bargaining via its 142nd, 154th, and 177th reports. A new chapter on ‘Plea Bargaining’ was introduced into the Criminal Procedure Code based on the recommendations of the Law Commission for certain offences.

There are three types of Plea Bargaining namely, Sentence Bargaining, Charge Bargaining, and Fact Bargaining.

The concept of ‘Plea Bargaining’ is operative in both India and USA but the practice is not identical. However, it is pertinent to know about the concept of Plea Bargaining and landmark cases associated to it in both legal systems separately for a fruitful comparison between the two.

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Plea Bargaining in USA

In USA, the accused can put forward one of the three pleas i.e. Guilty, Not Guilty, and Nolo Contendere. Under the doctrine of Nolo Contendere, the plea is treated as an implied confession of guilt or that the Court will decide on the point of his guilt.

However, the Court is not bound to accept such a plea of the accused. It is the discretionary power of the Court to either accept or reject such plea, considering the facts and circumstances of each case presented to it. The Court is supposed to ensure that the plea should be put forward voluntarily by the accused and absence of duress and coercion. The accused must receive the protection of secrecy. Plea Bargaining gained momentum due to the overcrowding in prisons of USA.

Landmark Cases in USA

  • State exrel Clark Adams[1]

In the instant case, the Court explained the doctrine of ‘Nolo Contendere’. The Court held that the plea of ‘Nolo Contendere’ also known as ‘Plea of Nolvut’ means the accused does not wish to contend.

  • United States Risfield[2]

The Court observed that in a criminal action in which an application for Plea Bargaining has been made, the adjudication by the Court in relation to the plea of guilty is not necessary. However, the Court may impose sentence on the accused person immediately.

  • Lott United States[3]

The Court held that the plea being tantamount to an admission of guilt, is not conviction but merely a determination of guilt.

  • Bordenkircher Haynes[4]

In this case, the US Supreme Court upheld the constitutionality of Plea Bargaining while awarding life imprisonment to the accused person who rejected to plead guilty for imprisonment for a term of five years. The Supreme Court observed a slight possibility that the accused person may be coerced to choose among the lesser of the two punishments.

The Supreme Court further observed that there is no probability of coercion or duress if the accused person is free to either accept or reject the offer made by the prosecutor during the negotiation process for Plea Bargaining.

  • Brady United States[5]

In the instant case, the Supreme Court held that the consensus reached out of fear that the trial will result into death penalty will not make the process of Plea Bargaining illegitimate. If the process of Plea Bargaining has been properly conducted and controlled, it is legitimate.

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Plea Bargaining in India

Section 265A to 265L (Chapter XXI A) of the Criminal Procedure Code, 1973 (hereinafter referred to as “CrPC”) contain provisions concerning ‘Plea Bargaining’.

Section 265A of CrPC provides who is eligible to take benefit of Plea Bargaining. According to the provisions of Section 265A, any accused may take the course of Plea Bargaining except the accused charged with offences that are punishable with death or life imprisonment or imprisonment for a term more than seven years. Also, an accused charged with an offence against a woman or a child below fourteen years of age or affecting the socio-economic conditions of the country, is also not allowed to take the course of Plea Bargaining.

Section 265B provides for the procedure to file an application for Plea Bargaining. The application must contain all details of the case accompanied by a sworn affidavit. Afterwards, the Court may examine the accused to satisfy itself of the fact that the accused has filed such application voluntarily. If the accused satisfies the Court of the voluntariness, the Court provides some time for the mutual satisfactory disposition of the case. If in case, the accused fails to satisfy the Court that he has filed the application voluntarily or that he has been convicted with the same offence previously, the Court may proceed from the stage the application has been filed before it.

Section 265C contains guidelines for mutually satisfactory disposition of the case. It states that the Court shall issue notice to the public prosecutor, if the case instituted on a police report, the accused, and the victim to participate in a meeting to reach at a satisfactory disposition of the case. However, the Court must ensure that the process be completed voluntarily and the accused may participate with his pleader, if he desires so.

Section 265D to Section 265I contain provisions concerning the report of mutually satisfactory disposition, disposal of the case, judgment of the Court, finality of the judgment, power of the Court in plea bargaining, and period of detention already undergone by the accused be set off against the sentence of imprisonment.

Landmark Cases in India

  • Murlidhar Meghraj Loya State of Maharashtra[6]

In the instant case, J. Krishna Iyer criticized the practice of Plea Bargaining. He observed that the Trial Magistrate is burdened with cases and hence, approves the secret dealings of Plea Bargaining. He further observed, “The businessman culprit, confronted by a sure prospect of the agony and ignominy of tenancy of a prison cell, ‘trades out‘ of the situation, the bargain being a plea of guilt, coupled with a promise of ‘no jail‘. These advance arrangements please everyone except the distant victim, the silent society…”

  • Kachhia Patel Shantilal Koderlal State of Gujarat and Anr.[7]

In this case as well, the Supreme Court criticized the concept of Plea Bargaining. The Court held that Plea Bargaining is an unconstitutional process as it encourages corruption and pollutes the concept of justice.

  • State of Uttar Pradesh Chandrika[8]

The Supreme Court held that it is a settled law that a criminal case cannot be disposed off merely on the basis of Plea Bargaining. It was further observed that it is the constitutional duty of the Court to consider the merits of the case and award appropriate sentence despite the confession of the guilt by the accused person.  Mere confession of the guilt by the accused person cannot be a reason for awarding lesser punishment.

However, there has been a shift in the judicial thinking with the passage of time.

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  • State of Gujarat Natwar Harchandji Thakor[9]

In the instant case, the Gujarat High Court favoured the process of Plea Bargaining and held that the object is to provide easy, cheap, and expeditious resolution of disputes including the trial in criminal cases and that it prevents the pendency and delay in disposal of the administration of justice.

  • Vijay Moses Das CBI[10]

In the instant case, a person was accused of supplying of sub-standardized material to ONGC at a wrong port and thereby, causing ONGC to suffer huge losses. CBI completed the investigation and started prosecution against the accused person under Section 420, 468, and 471 of the Indian Penal Code, 1860. The accused person took the course of Plea Bargaining. But the Trial Court rejected the application of Plea Bargaining on the ground that it was not accompanied by an affidavit as stipulated under Section 265B and no compensation was fixed. However, the Uttarakhand High Court directed the Trial Court to accept the application of Plea Bargaining.

  • Thippaswamy State of Karnataka[11]

In the instant case, the Supreme Court held that inducing an accused person to plead guilty under any assurance or promise is unconstitutional for being violative of Article 21 of the Indian Constitution. It further observed that in such cases, the Court must set aside the conviction and direct the case to the Trial Court to give accused person the right to defend himself and if found guilty, the Trial Court may award appropriate punishment to him.

Plea Bargaining in India and USA: Comparative Analysis

Though the concept of ‘Plea Bargaining’ as adopted into the Indian legal system has been borrowed from USA, it is still distinguishable from the operation of ‘Plea Bargaining’ in USA. Following are some of the major differences that exist between the concept of ‘Plea Bargaining’ as operative in India and USA:

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  1. Nature of Offence

In USA, there is no provision as to the prohibition on plea bargaining in certain offences. An accused person charged with any offence may take the course of Plea Bargaining. However, in India, there are exceptions as contained in Section 265A. Following categories of accused persons cannot take the course of Plea Bargaining in India:

  1. Accused person charged with an offence punishable with death
  2. Accused person charged with an offence punishable with life imprisonment
  3. Accused person charged with an offence punishable with imprisonment of more than seven years
  4. Accused person charged with an offence against women
  5. Accused person charged with an offence against a child below fourteen years of age
  6. Accused person charged with an offence that affects socio-economic conditions of the country
  7. Role of Victim in Proceedings

In Indian Law, the victim has an important role in the proceedings of Plea Bargaining. The victim has the power to refuse or veto if unable to reach a mutually satisfactory disposition. However, in USA, the victim does not have an active role to play in the proceedings of Plea Bargaining.

  1. Mechanisms available for enforceability

In USA, an application for Plea Bargaining is filed only after the negotiation process between the accused person and the prosecutor is complete. However, in India, the negotiation process with the accused person does not even start before the filing of the application of the Plea Bargaining to ensure that the application of Plea Bargaining is filed voluntarily by the accused. Therefore, there is less chance of the accused being coerced or secret dealings for filing an application for Plea Bargaining.

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  1. Discretion of the Judge

In USA, the judge does not exercise discretionary power while accepting an application for Plea Bargaining. However, in Indian legal system, the judge has discretionary powers to either reject or accept an application for Plea Bargaining filed by the accused person.

  1. Finality

Under the Indian legal system, if the Court thinks the punishment awarded in any case of Plea Bargaining is insufficient or is guarded by unfair circumstances, it may be set aside either by an SLP under Article 136 or a writ petition under Articles 226 and 227 of the Indian Constitution. However, in USA, it reaches its finality.

 

Conclusion

The conviction rate via Plea Bargaining in the USA is as high as nearly 90% whereas in India, it is not even close to 10% of the criminal cases. This disparity exists due to the differences that exist between the concept of Plea Bargaining as practiced in USA and India.

Though the conviction rate in India is way too low as compared to the conviction rate in USA, it is effective in ensuring that the application of Plea Bargaining has been filed voluntarily. Justice may be delayed but must not be denied. In India, an accused person does not take the course of Plea Bargaining to choose the lesser among the punishments but is a voluntary action. Hence, it is high probability that an innocent person will not be awarded punishment in India by way of Plea Bargaining.

However, speedy disposal of cases is the need of the hour. Hence, the legislature must go for reforms and provide adequate infrastructure to the judiciary to reduce the number of undertrial prisoners.

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[1] 363 US 807

[2] 340 US 914

[3] 367 US 421

[4] 434 US 357 (1978)

[5] 397 US 742 (1970)

[6] AIR 1976 SC 1929

[7] 1980 Cr LJ 553

[8] 2000 Cr LJ 384

[9] (2005) Cr LJ 2957

[10] Crl. (Misc.) Application No. 1037/2006

[11] (1983) 1 SCC 194

Categories
Blog

Insider Trading in view of the order by SEBI to ban Future group

By: Vatsal Mehrotra

Introduction

Insider trading can be defined as buying or selling of a public company stocks by a person who has non-public and material information about that company or the management decisions to be taken by that company. Depending on when the insider makes the trade, Insider Trading can be categorized as legal or illegal. Material non-public information is defined as any information that could substantially impact an investor’s decision to buy or sell the security that has not been made available to the public yet. This information is largely used in the stock market which engages in trade of shares and securities. The prices for which are subject to fluctuation if there is any important change in the management of the company. Apart from this the fluctuation in the prices of the shares of that company in the stock market, is also visible when important decisions pertaining to mergers, acquisitions or takeovers are undertaken in the company. Knowledge of these changes without the official public announcements is beneficial for the people engaging in such illegal transactions of stocks.

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It is considered one of the most serious crimes in the capital markets as the inside trader has traded undisclosed price sensitive information regarding the shares of that particular company.
However, if the said trade is done towards any regulatory authority or the prescribed authority then the same trade would not amount to any violation of law. In academic circles the idea of insider trading is still debatable as academicians under circumstances feel that insider trading is important for building the trust and confidence of the employees of the company towards the company. Therefore, one must be careful while treating a trade in securities of a company as insider trading. They must consider all the relevant factors like the nature of information, the existence of substantial connection with the company, etc.

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Insider Trading in India

The reason insider trading is considered illegal in law is that it gives a person an unfair advantage and persons not having that advantage cannot trade and will be under loss. Moreover, fair opportunity which shall be granted to everyone trading in the stock market to buy and sell the shares will be lost and the holder of the illegal information shall be creating unfair transactions. To counter such a situation, the legislature passed Securities and Exchange Board of India Act, 1992 (SEBI Act, 1992), in which, under section 15G, for insider trading was provided.

The penalty for such an offence was provided to be not less than ten lakh rupees which may extend to twenty-five crores rupees or three times the profit made on such trading. In fact, the SEBI regulations have been amended from time to time. After Hindustan Lever Ltd v. SEBI, (1998) 18 S.C.L. 311AA, the regulations were for the first time amended in 2002 after which the next set of amendments came in 2019 on the recommendations of the Fair Market Committee (FMC). While the most recent reform came after the meeting of the SEBI on 25th June, 2020, where maintaining a structured database containing the nature of unpublished price sensitive information (UPSI) along with the name of the person sharing such information was incorporated.

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Future Group and Insider Trading ban

SEBI on 3rd February, 2021, banned Kishore Biyani, founder of Future Retail Groups from buying, selling, or dealing in securities of Future Retail for two years. His brother Anil along with several other entities were also banned. This was done in relation to a case filed back in 2017 where enquiry was called in the use of UPSI to trade in Future Retail shares. The SEBI found out that several entities Future Corporate Resources Pvt. Ltd (FCRL), FCRL Employee Welfare Trust, etc., were acting in connivance with the Biyani family for insider trading.

The order stated that the Biyani-family controlled entities were in violation of the regulatory mechanism as they had indulged in insider trading in the shares of group flagship Future Retail Ltd (FRL) prior to an announcement about the consolidation of the group’s offline and online home retail business into a single entity. Following the announcement in April 2017, shares of Future Retail hit a record high. The price of the scrip of FRL increased 4.68% from Rest. 292.60/- per share (closing price on April 19, 2017) to Rs.306.30/- per share (closing price on April 20, 2017).

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The order had also clarified that “When a person who has traded in securities has been in possession of unpublished price sensitive information, his trades would be presumed to have been motivated by the knowledge and awareness of such information in his possession. The reasons for which he trades or the purposes to which he applies the proceeds of the transactions are not intended to be relevant for determining whether a person has violated the regulation. He traded when in possession of unpublished price sensitive information is what would need to be demonstrated at the outset to bring a charge.”

In April, 2017, the Future Retails Group consolidated its home retail business, offline operated by its HomeTown stores while online and ecommerce by Blue eServices which owns and manages fabfurnish. This was done to bring “greater visibility on the performance of the home retail business and e-commerce home retail business”. However, Biyani and other related entities started buying FRL shares from March 10th, 2017 when the decision was internally improved even though this was made public on April 20th, 2017 during market hours.
The funds for purchase of the FRL shares during the UPSI period was done on the written instructions and authorization by Kishore Biyani and Anil Biyani to their stockbroker Indiabulls. SEBI fined them heavily for this holding the entities guilty of the crime of insider trading.

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However, on 6th February, 2021, the ban by the SEBI was challenged and Kishore Biyani moved the Securities Appellate Tribunal (SAT) challenging the ban. In fact, the FRL spokesperson has said “On merits, the SEBI order is untenable since it treats a well-anticipated and publicly well-known impending reorganisation of the home furnishing businesses that the Future Group affected in 2017 to be unpublished information.”

Approach of the Courts in Insider Trading Matter

The juridical approach has always been such that inside traders have been dealt strictly in accordance with law. In Securities Exchange Commission v Rajat Gupta ,747 F.3d 111, the defendant had traded in confidential information worth in billions and he was convicted for a period of two years and fined five million dollars along with returning the profits gained from insider trading.
Gujarat NRE Mineral Resource Limited v. SEBI, (Appeal No. 207 of 2010 decided on 18.11.2011), the main issue was whether investment from one company and selling it to the other company affects the prices of shares. The Appellate Tribunal decided against it as it held that since an investment company’s primary objective is buying and selling of securities, such an act would not amount to price sensitive information. After Hindustan
Hindustan Lever Limited v. SEBI, (1998 SCL 311), the regulations were amended by the SEBI in such a manner that any speculative news published in the newspaper or in electronic media about a company would not amount to publication of price sensitive information.

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Recommendations to improve regulations against Insider trading

The harmful effects of insider trading is disruptive for the market and certain measures can be taken to prevent such incidents. To prevent such incidents the stock exchanges play a very important role and the proactive approach by them can help by duly monitoring the transactions by the insiders constantly and instantly reporting any suspicious activity by the insider to the SEBI. Furthermore, the regulations can be amended to impose liability on the person who receives the tip for trading in confidential information. Other than that the investors who are contemporaneously trading at the time of insider trading must be given the option to recover the losses suffered from the insider.
Rachana Panguluru, Vamsi Krishna Bodapati, Insider Trading- Comparative study with the UK and India, Manupatra.
This action might refrain the insiders from insider trading because many investors can exercise pressure on the insiders. The companies can also have qualified stock brokers who they make mandatory for all the insiders to purchase stocks only through that particular broker. The qualified broker will check whether the insider purchasing the stock satisfied all the conditions preceding the purchase or not and duly report them to the company.

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Nonetheless, the efforts undertaken by SEBI to prevent insider trading is commendable and has helped India emerge as a top player in the capital market and its insider trading prohibition laws are equally competing with such laws in the developed countries. SEBI time and again constituted committees to have the regulations and laws on the prohibition of insider trading updated. It is constantly on a run in updating all the laws to prevent insider trading. SEBI started observing the markets to get rid of the insider trading activities at the root level itself.

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Racism In Sports: International Laws & Rules From Various Jurisdictions

By: Umang Chaturvedi

 

“Why are all the angels white?

Why ain’t there no black angels?”

                                                        -Muhammad Ali

Abstract

Sports have acted as a medium to connect people beyond language, ethnicity, culture and boundaries. In its pure sense, it is a satisfying activity at the micro-level and nothing less than a war at the macro level. The scale of competition increases with the hierarchy and so does the complexities. Some athletes and sportspersons are revered equivalent to Gods in their respective fraternity by the public. This respect is gained by them because of the magnanimity of sports. The business that goes behind the curtains has resulted in this magnanimity. But these Gods within the ambit of their magnanimity have not been untouched to the social issues which normally go unnoticed. Issues like racism in sports are not done yet from the world let alone the sporting facility. This article elucidates the reasons of racism present in professional sports with an attempt to define the core and genesis of the problem.

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The author explains the legislations/law which helps to counter this problem at global level. Additionally, the author has tried to provide an analysis through the cases of international performers who were subjected to racism in their careers. Certainly, the issue of disparity on the basis of colour begins within the nations. The problems are much more than racism being a ground of discrimination. In a country like India the issues even extend to discrimination on the basis of caste, sub-caste, race, gender, sex, etc.

  1. Introduction

Racism is defined as “a belief that race is the primary determinant of human traits and capacities and that racial differences produce an inherent superiority of a particular race”[1] by the Merriam Webster dictionary. Senseless killings and instances of Eric Garner (2014), AhmaudArbery (February 2020), Breonna Taylor (March, 2020) and George Flyod (May 2020) have witnessed sports community coming together to support the right cause irrespective of differences. Such issues force athletes to speak effectively as they do not want to go unheard for the social cause. LeBron James, Stephen Curry, James Harden, etc. are some of the most vocal NBA players after the recent incidents occurred. Other figures from different sports that have been vocal are Lewis Hamilton, Colin Kaepernick etc. They have supported the cause too.

The problem has not been untouched to the fraternity of sports. Rather it is more rampant. Any act within the territorial boundary of a competitive sport can be disguised as an act in the heat of the momentby the offender. Calm and composure are expected the most out of an athlete and sportsperson. These acts from the coolpeople then cannot be covered under the garb of competition or heat of the moment.

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  1. Core Problem

With cricket being popular as the game of gentlemen, it upsets the fraternity when conflicting views are shared by somebody belonging to the game itself. In late June 2020, West Indies cricket team’s captain Jason Holder said, “it is time for the entire cricketing fraternity to treat racism as seriously as match-fixing or doping and to hand tougher bans on racial offenders.”[2] Such statements point fingers at the authorities and the incapability of sport-specific laws which need to get stricter.

The core of the problem is the chauvinism that a superior country’s men carry with them. Such stereotypes are broken easily when a deprived and dominated wins or creates his/her space in the sport bare minimum. In context, 2013’s Chadwick Boseman starrer sports-drama film, “42”[3] came in light. It highlighted the efforts of an African-American Major League Professional player Jackie Robinson who was subjected to racism in a then all-white baseball league by fellow players and fans. His jersey number was later retired in respect, on which the film’s name was based.To draw a parallel from the same, the core of the issue lies within the people of the sporting fraternity. Everybody associated with it especially the fans.

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  1. Laws, legislations and efforts

Issues raised through acts done by black athletes are certainly to bring into light the adversities they’ve faced over the course of history. These issues are political in nature which overlaps with sports. This overlap has its own interpretation where some define it to be right and other define it to be wrong. “Dissent in sports is usually understood as expressing dissatisfaction against an umpire’s decision. However, in the present context, dissent must be understood as a conscientious protest against a larger problem that has socio-political undertones.”[4] In this sub-heading, the author has tried to analyze various measure and steps taken by the way of local laws of different jurisdictions. The examples considered for study include and are categorized into Australian laws, European laws and initiatives, Conventions of United Nations, laws of USA and Indian laws.

  1. Australia

The provisions of the International Convention on the Elimination of All Forms of Racial Discrimination (“ICERD”)[5] are incorporated under Australian Law through its Racial Discriminations Act of 1975. It is a general legislation extending to sports and related organizations. Australian Football League (AFL) guidelines are strict regarding racism since the introduction of Rule 30 in 1995. Rule 30 is used to tackle racism and religious vilification. Even the laws of Australia are stringent regarding racism in general through Racial Discrimination Act, 1975 and Racial Hatred Act, 1995[6].

In 2008, Indian spinner (cricketer) Harbhajan Singh was penalized for allegedly expressing racial views on an Australian cricketer Andrew Symonds when the former called him ‘monkey’ during a test match in Australia. This embarrassing event was a confusing one. It was deliberated if the act was racial or not because the remark clearly did not qualify for the alleged violation but it was still derogatory. Eventually Justice John Hansen of Australian Appeal Court absolved the cricketer of liability and cleared the charges. What adds to the problem is that a spectator cannot be banned or fined for comments because that is the major revenue generation source for clubs. Australian local football has seen various instances where boys aged 12-14 who come from other countries to make their career face racism at a vulnerable stage.[7]

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  1. Europe

Europe has been the center stage for football with record breaking viewership every year. Multiple local leagues are supported due to interest and large fan base. As a cherry on the top, UEFA Europa League and UEFA Champions League have dominated global football in all terms. There are multiple organizations and legislations which help in tackling the problem in Europe. FARE (Football Against Racism in Europe) Network is one such organization which has received backing from governing bodies like UEFA, FIFA and European Commission for the common objective of eradicating the social issue. Headquartered in London, it was set up in the year 1999 at Vienna (Austria). It gained relevance in the contemporary scenario when it began to work as a network of enthusiasts, players, associations, etc. as members to stand strong against the discrimination.

A similar initiative as a 3 day campaign was launched in 2006 by the Romanian Football Federation in association with National Council for Combating Discrimination (a society-institute based in Romania). It was named Racism Breaks the Game which was organized to combat discrimination against the Romani minority and to promote fair play in football. Even UEFA DR Article 14[8] prohibits racism of any form and prescribes ways to tackle it through guidelines. Article 165 of Treaty on the Functioning of the European Union (TFEU) also acts in the same regard. It deals with all such issues arising out of sports. Lisbon Treaty though allows the Union for minimal interference but acts strictly through courts for cases arising out of racism.

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  1. United Nations and United States of America (USA)

United Nations has time and again used sports as a mode to end racism at global level. It was reiterated by then Secretary-General Ban Ki-moon that, “Sport is a universal activity that can reaffirm our fundamental human rights.”[9]He urged to “use the power of sport to end the blight of racism” as it marked the annual International Day for the Elimination of Racial Discrimination in 2013.Additionally, The Durban Programme of Action 2001 in paragraph 128, 129 and 218 urges international and national sports bodies to tackle racism effectively. Inter-American Convention against Racism, Racial Discrimination and Related Forms of Intolerance, 2013[10] is another internationally signed document.

In USA, the Patsy Mink Equal Opportunity in Education Federal Act, 1972 complements the Civil Rights Act, 1964 “in the area of public education and federally assisted programmes (enacted to end discrimination in various fields)”[11]. The legislation has ensured equal access to sports for all active programmes that receive federal funding in USA[12]. Even after attaining peak of success in sports, public and spectators disregard such facts and direct racist comments in NBA, Pro Baseball and NFL. In early 2019 Oklahoma’s basketball star Russell Westbrook faced racist remarks in an away game at Utah.

  1. India

India is a home to multiple sports and professional leagues like IPL, ISL, IHL, Pro-Kabaddi etc. The country is more special due to its diversity. Additionally the essence of regional representation varies. There are sub-divisions and regions within regions. Even a whole north-east is described into 7 sisters further. South, in itself is divided in historical kingdoms now states. This division is interesting but when people from different backgrounds face each other in state/national camps, there are conflicts of opinions, likes, dislikes which might be detrimental in the longer run for a team representing at the international level.

The best example can be drawn from 2007’s Indian film Chak De! India. Shah Rukh Khan embodied the role of hockey coach Maharaj Krishan Kaushik mixed with the background of Indian player Mir Ranjan Negi. The film was based on a real story where Indian Women’s Hockey Team won 2002 Commonwealth Games. It showed the reality of internal conflicts (due to colour, region, state, racial and religious bigotry[13] etc.) between players during the camp.

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India introduced the Anti-Discrimination and Equality Bill 2016 (ADE Bill) in the Lok Sabha to tackle any form of discrimination. Other than broad discussions under Article 14, 15, 16 of the Constitution of India, federations are entrusted with the duty to handle all issues relating to sports. Additionally, Section 153A of the Indian Penal Code, 1860 deals with the punitive measure related to racist acts or comments.

  1. Conclusion – Solution and Criticism

In all, the issue of racism has proven to be detrimental to the development of some athletes but there are many amazingly great sportspersons who have defeated all odds and reached the top in their respective sports. The problem is deep rooted in the social system which comprises of humans, which is a much broader aspect than society. It includes athletes, sportspersons and all other people related to the fraternity of sports in one way or other. To eradicate the issue of racism from sports, the primary need is to make people realise that there are no differences in reality, they are essentially in the mind of individuals and their beliefs, which is prima facie incorrect.

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Until the mentality of important organizations like IOC does not change, no substantial change can be found. The controversial Rule 50 of the Olympic Charter prohibits any “kind of demonstration or political, religious or racial propaganda…in any Olympic sites, venues or other areas”. It was clarified by the authorities in January 2020 in preparation of scheduled Olympics that any gesture or kneeling (like past incidents of Gwen Berry’s fist on podium and Colin Kaepernick’s kneeling) will not be entertained at the events.

Until IOC resolves issues like these where the anti-racist demonstration are looked at from a perspective of political overlap, there won’t be a solution. The international sports guidelines in context with racism are soft but strict. Still there is a requirement for spectators, fellow players and organizations to be careful specifically around the young representatives of respective sports. A negative impression is made for a second inside the court/field which stays and impacts a vulnerable young player for his whole life. Sports should be used as a medium for the primary purpose of leisure and shall only be associated with the efforts, hard-work, dedication and sweet success involved.

[1]Racism, Merriam-Webster Dictionary (Jan. 23, 2009).

[2]Sportstar, Jason Holder: Racism Should be Treated as Seriously as Match-Fixing and Doping, (June 28, 2020), https://sportstar.thehindu.com/cricket/england-vs-west-indies-racism-sammy-jason-holder-gayle-icc-ipl/article31 937748.ece.

[3]History.com, Jackie Robinson Breaks Color Barrier, (April 13, 2020), https://www.history.com/this-day-in-history/jackie-robinson-breaks-colorbarrier#:~:text=On%20April%2015%2C%201947%2C%20Jackie,for%20more% 20than%2050%20years.

[4]Shivam Singh, When Sports Align With Dissent, The Indian Express, (June 26, 2020), https://indianexpress.com/article/opinion/black-lives-matter-when-sports-aligns-with-dissent-6477907/.

[5]Australian Human Rights and Equal Opportunity Commission, What’s the Score?A Survey of Cultural Diversity and Racism in Australian Sport, (2006), p. 8, https://www.humanrights.gov.au/publications/whats-score.

[6]Id.

[7]Sophie Kesteven, Kids are Being Subjected to Racist Abuse at Junior Sports Games, ABC Radio National, (Nov 1, 2019), https://www.abc.net.au/news/2019-11-01/racism-in-junior-sport-australia-talks/11636174.

[8]UEFA Disciplinary Regulation, 2019 Edition, https://editorial.uefa.com/resources/0257-0ddf58550d23-3b55809 3983e-1000/disciplinary_regs.pdf.

[9]UN News, No Place for Racism in Sports, UN Declares on International Day, (March 21, 2013), https://news.un.org/en/story/2013/03/435072-no-place-racism-sports-un-declares-international-day.

[10]Organisation of American States, Inter-American Convention Against Racism, Racial Discrimination an Related Forms of Intolerance, http://www.oas.org/en/sla/dil/inter_american_treaties_A-68_racism.asp.

[11]ACLU, Gender Equity in Education, https://www.aclu.org/title-ix-gender-equity-education.

[12]U.N. GAOR, 69th Sess., A/69/340, Combating Racism, Racial Discrimination, Xenophobia and related intolerance, (Aug. 22, 2014), https://www.ohchr.org/Documents/Issues/Racism/A-69-340.pdf.

[13]Jaspreet Pandohar, Chak De India! BBC, (August 1, 2007), http://www.bbc.co.uk/films/2007/08/06/chak_ de_india_2007_review.shtml.

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