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SSRana Newsletter 2022 Issue 18

August 5, 2022

In Bangladesh Intellectual Property Trends (2010-2022)

Intellectual Property Trends In BangladeshBangladesh has recently brought amendments to its IP regime and has also suffered the consequences of Covid-19, socially as well as economically, like the rest of the world.

Indian IP Office – Special Drive for Disposal of Opposition and Rectification Matters

Rectification Matters- Indian IP OfficePublic Notice issued by office of CGPDTM for expediting the Opposition and Rectification matters that have been amicably settled by the parties and also encouraging the parties to resolve the pending opposition and rectification disputes utilizing the various alternate mechanisms for dispute mechanism.

‘Bug fixes’ in the Information Technology Rules, 2021?

Information Technology RulesReporting on the MeitY seeking public comments on the proposed draft for amendment in Part-I and Part-II of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“IT Rules, 2021”).

Is Virat Kohli – Bowled over by Copyright Misuse?

Virat Kohli- BowledIn the modern age of unceasing celebrity adulation, the paparazzi is an often vilified organism. It has always been pitched as a battle between the private lives of celebrities, and the relentless hunger of the paparazzi’s lenses, seeking profit from unearthing scandals in the private lives of the rich and famous.


Intellectual Property Trends In Bangladesh (2010-2022)

Intellectual Property Trends In Bangladesh

By Lucy Rana and Abhishek Chandok

The Department of Patents, Designs and Trademarks (DPDT), under the Ministry of Industries, Bangladesh, is a government body that is responsible for granting patents, designs and trademarks registrations in Bangladesh.

Bangladesh has recently brought amendments to its IP regime and has also suffered the consequences of Covid-19, socially as well as economically, like the rest of the world. We have previously gathered and analyzed the statistical data provided by DPDT, Bangladesh for the years 2004 to 2014 which can be accessed here. Now, we have gathered the statistical data provided by the DPDT, Bangladesh for the past 12 years, from the year 2010 to 2022, to study the changes observed in applications and registrations of patents, designs and trademarks.

Trademark Filing and Registration Trends in Bangladesh

In 2015, the Bangladesh government brought two changes to its trademark laws. Firstly, it enacted the Trademark Rules, 2015 that repealed the old Trademark Rules, 1963 and secondly, it brought amendments to its Trademark Act, 2009. The new rules have allowed the trademark applications to be filed in Bangla language as well. This step certainly helps encourage the residents and locals to file trademark applications independently.

Trademark Applications Received vs Certificates Issued

Trademark-registeration-and-received

In terms of trademark filing, there have been ups and downs in the past decade. However, the number of applications have increased by more than 50 per cent since 2010. Furthermore, the trademark applications have gradually increased by 10 to 13 per cent since 2019. Even the onset of Covid-19 does not seem to have any effect on the number of trademark filings received in the year 2020 and 2021.
On the other hand, in terms of trademark registrations, the DPDT, Bangladesh granted 4522 registrations in the year 2015 which is the highest number of registrations granted in its history. It is a three-fold increase in comparison to registrations granted in the year 2010. Since 2015, the number of registrations has dropped by almost 12 per cent to 3945 in the year 2021. The DPDT performed at its lowest during covid in the year 2020, handing out merely 1362 registrations. However, it experienced a speedy recovery in 2021 and granted three times more registrations.
Trademark Applications Received: Residents vs Non-residents

 

Trademark-Applications-Received:-Residents-vs-Non-residents

 

Trademark Applications Granted: Residents vs Non-residents
Trademark-Applications-Granted:-Residents-vs-Non-residents

 

It is interesting to note that the number of registrations granted to non-residents is significantly higher than the number of registrations granted to its residents. Furthermore, the ratio of applications filed to registrations granted is less in case of non-residents and more in case of residents.

Patents Filing and Registration Trends in Bangladesh

 

Patent Applications Received vs Patents Granted

 

Patent-Applications-Received-vs-Patents-Granted

 

In terms of patents filing, the number of applications have increased by 30 per cent from 342 in 2010 to 447 in 2021. No major change has been observed in the year 2020 as well.
In terms of patents granted, the number has doubled from 137 in 2010 to 240 in 2021, marking the year as one in which the highest number of patents were granted by DPDT, Bangladesh till date.

 

Patent Applications Received: Resident vs Non-resident
Patent-Applications-Received:-Resident-vs-Non-resident

 

Patents Granted: Resident vs Non-resident
Patents-Granted:-Resident-vs-Non-resident
It is observed that the number of patent applications filed by foreign applicants are considerably more than the number of applications filed by the domestic applicants. As a result, the same trend is also observed in terms of patents granted where almost 80 to 90 per cent of the patents granted belong to the foreign applicants.

 

Industrial Designs Filing and Registration Trends

 

The DPDT, Bangladesh has only released statistical data till the year 2020 and is yet to publish figures for the year 2021. Therefore, we have analyzed the data from the year 2010 to 2020 only.

 

Design Applications Received vs Designs Registered
Design-Applications-Received-vs-Designs-Registered
With respect to design applications filed, it is observed that the total number of filings has increased by 38 per cent from 896 applications in 2010 to 1241 applications in 2020. The total number of applications peaked at 2014 in the year 2018 after which it has declined to almost half its number in 2020.
In terms of designs registered, the numbers peaked in the year 2012 to 1156 registrations. However, the overall trend has suffered a decline from 824 registrations in 2010 to 688 registrations in 2020. Furthermore, the gap between the applications filed and registrations granted is minimal in the years 2010 and 2012. Since 2012, this gap has been consistently increasing till 2019 with a slight relief in the year 2020.

Design Applications Received: Residents vs Non-residents

Design-Applications-Received:-Residents-vs-Non-residents

Designs Registered; Residents vs Non-residents

Designs-Registered;-Residents-vs-Non-residents

Contrary to the patent filing trends by the foreign applicants, the number of design applications filed by foreign applicants are miniscule whereas almost 90 to 95 per cent design applications are filed by domestic applicants. However, the number of foreign applications has seen a five-fold increase in the year 2012 after which it has dropped to a mere 57 applications in 2020. All in all, the area of design applications is still dominated by the domestic applicants.

Conclusion

The Government of Bangladesh has made several changes in its IP legal regime. The IP Policy 2018 brought by the Bangladesh government with a mission to make Intellectual Property an essential part of the national development plans and strategy has seen positive changes in the area of trademark and patent filings in terms of domestic applications. However, no such change has been observed in case of industrial design applications.

 

The government has also decided to repeal its old Patents and Designs Act, 1911 and replace it with Bangladesh Patent Act, 2022 for patents and another act for industrial designs for which a draft of Bangladesh Industrial Design Bill, 2021 has already been approved by the cabinet. These steps are taken to diversify and bifurcate the two areas.

 

The government has recognized the important role of Intellectual Property rights in the development of economic status of a country and is taking active steps to develop its IP laws and bolster the same. The Bangladesh IP regime has undergone major changes in its IP regime and its effects will surely be reflected in the next decade.

Source: Department of Patents, Designs and Trademarks, Bangladesh
http://www.dpdt.gov.bd/

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Special Drive for Disposal of Opposition and Rectification Matters- Indian IP Office

Rectification Matters- Indian IP Office

The Office of the Controller General of Patents, Designs and Trade Marks (CGPDTM), Mumbai has issued a public notice dated August 01, 2022 , regarding the pending opposition and rectification matters wherein the parties have settled the matter amicably.

 

The aforesaid notification has been issued by the CGPDTM in furtherance of ‘Azadi Ka Amrit Mahotsav’, an initiative launched by the Government of India to commemorate the 75th Anniversary of India’s Independence, whereby the Office has taken an initiative to run a special drive for disposal of IP disputes by encouraging the parties to dispose the pending opposition and rectification cases with the objective to Let the ‘Azadi Ka Amrit Mahotsav’bring dispute free IP regime.

 

Under this initiative, the Office is encouraging all the parties, whose opposition or rectification matters are pending before the Trade Marks Registry and, wherein no amicable settlement has been arrived, to settle the disputes utilizing the various alternate mechanisms for dispute resolutions.

 

Further, the office also encourages the parties who have already settled their cases amicably, to report to the Trade Marks Registry (TMR) for formal settlement of pending proceedings before the Registry. In case the parties have already sent communications to the Registry regarding their amicable settlement, and no final orders could be issued in such cases, the parties may again register the matter at Trade Marks Registry on the below mentioned link and submit the supporting documents for already settled matter during the ‘Azadi Ka Amrit Mahotsav’ period between August 02, 2022 to October 02, 2022:

 

https://ipindiaonline.gov.in/trademarkefiling/OppositionSettlementRequest.aspx ,(The said link shall be active from August 02, 2022 to October 02, 2022)

 

Upon receipt of documents pertaining to the already settled matters along with settlement letter and withdrawal requests on the above mentioned online portal, the Office shall dispose off the pending matters before Trade Marks Registry by passing suitable orders as per provisions of the Trade Marks Act.

 

The said link directs to the below mentioned online portal:

 

Request-for-Settlement/Withdrawal-of-opposition

In 2021 ‘Bug fixes’ in the Information Technology Rules?

Information Technology Rules

By Ananyaa Banerjee and Girishma Sai Chintalacheruvu

The Ministry of Electronics & Information Technology (MeitY) rolled out a new set of IT Rules, 2021 on May 26th, 2021, primarily focusing on creating significant provisions for setting up a comprehensive grievance mechanism for social media users and to regulate content being generated therein. The rationale was to impose accountability on social media and internet providers, which have more than five million users, termed as Significant Social Media Intermediary (“SSMI”). For more information on these rules, you may access our comprehensive article on the same here.

One year into the implementation of the said rules, the MeitY on June 06, 2022 had rolled out a set of amendments and have sought for comments from the public, open for 30 days, i.e. till July 06, 2022. The amendments come in light of the practical implementation of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 and to fill in the gaps and maximize its effectiveness and efficiency in the Indian digital ecosystem.

Existing Features

The rules essentially defines ‘intermediaries’ as entities that store or transmit data on behalf of other persons and include telecom and internet service providers, online marketplaces, search engines, and social media sites. Further, it lays down certain due diligence requirements that each of such intermediaries are expected to comply, subject to which they shall be exempted from any form of liability for user-generated content. These due diligence requirements prima facie include:

  1. Sufficiently apprising its user about all rules, regulations, privacy policies, terms and conditions, etc. that may have been set in place by such intermediaries for their user to be able to avail the services offered by them.
  2. Formulation of a mechanism that enables the removal of content as per the government or the court, in an expedited manner.
  • Setting up a grievance redressal mechanism to resolve complaints by users
  1. Facilitating the tracking down of the identification of the first originator of any information published online, however, only under specific circumstances.

Key Proposed Changes to the Information Technology Rules

Setting up of Grievance Appellate Committee

The driving force behind proposing amendments to the existing rules is to ensure the smooth resolution of grievances, up to the point of user satisfaction. With this setting the tone, the draft proposes the creation of individual government-appointed appeal committees to adjudicate matters related to content moderation across social media and other internet platforms.

With a view to make the recourse for users more functional, the proposal of the establishment of a dedicated Grievance Appellate Committee (GAC) has been put forth. While in present day, the only alternative a dissatisfied user has in order to appeal against any decision related to content moderation (taken by the company’s grievance officer), is to approach the courts. However, with the introduction of GAC, the MeitY aims to shift the responsibility of bringing a problem to its logical conclusion, from the company, to the laws of the land in a two-fold manner, and concurrently also decrease the load on Courts.

Additional Responsibilities on Grievance Officers

The proposal also seeks for a quicker redressal of matters, which inter alia involves issues related to intellectual property, national integrity, etc. Currently, company grievance officers typically have about 15 days to act on a user complaint and resolve it. However, in the aforementioned circumstances, such grievances are expected to be dealt with at an expedited rate, i.e. within 72 hours of the complaint being raised.

Recognition of user’s constitutional rights

Justice K. S. Puttaswamy (Retd.) and Anr. v. Union of India and Ors.[1] led the citizens (and in this case, the netizens) of India to enjoy the fundamental right to privacy. Thus, with the proposal of amendments, the MeitY has inter alia expressed that the implementation of the amendments in discussion would enable them to actually enforce the requirements of the Information Technology Rules, 2021 in letter and spirit, further expressing that the main focus behind the introduction of the said amendments is to ensure that the constitutional rights of Indian citizens are not contravened by any big tech platform by ensuring new accountability standards.

General Public Views

With the last date to turn in comments and inputs on the draft in discussion, lapsing on July 06, 2022, the internet in the meantime, did see a rather mixed reaction towards the reception of the proposals.

Ostensibly, it appears that the proposed introduction of the GAC was welcomed by many, as it was viewed to be a regulatory authority that would act independent of in-house grievance officers; the advantage being that it would adjudicate such complaints, subjecting them to applicable Indian laws and fundamental rights of Indian citizens/netizens along with the policies set in place by the relevant intermediaries, thereby protecting the rights of Indian netizens.

However, the execution of orders issued by the GAC was a cause of concern for some, largely due to the lack of clarity in this aspect, as ultimately, despite obtaining an order from the GAC, it is the intermediary that the user would have to approach. Moreover, this line of thought also brought to light questions regarding the willingness of intermediaries to comply with the requirements outlined in the Rules.

Non-compliance by intermediaries may bring to India, a situation much like the one created in the European Union, where the introduction of the EU General Data Privacy Regulations (GDPR) sent chills down the spines of giants such as Facebook and Instagram owing to the extensive compliances set out by the GDPR for such intermediaries to comply.[2] While EU has the resources and confidence to accept and express indifference towards the warning of sorts, solicited by Meta (inter alia hinting at the suspension of their social media services in the EU in light of their reluctance to conform to the GDPR), it is indeed a cause of concern should a situation like that arise in India. This is because a large chunk of the Indian audience relies heavily on these very platforms, and they in all likelihood may take a big hit if intermediaries, such as Meta were to withdraw their social media services from India.

Additionally, another view also included concerns with respect to the power of the government to get content removed under the garb of harm to national integrity. More so, as this power, read with Section 69 of IT Act[3], would raise questions with respect to the government’s accountability in so many ways.

Now that the comments of the public are under scrutiny and due consideration, time will tell how the said Rules would play out in the Indian scenario and how its implementation affects the process of dealing with content moderation online, while accounting for user rights.

[1] Writ Petition (Civil) No 494 of 2012; (2017) 10 SCC 1; AIR 2017 SC 4161

[2] Read more at https://ssrana.in/articles/ban-google-analytics-data-privacy-eu/

[3] Orders to take down content under Section 69 of the IT Act are not public

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Virat Kohli- Bowled over by Copyright Misuse?

Virat Kohli- Bowled

By Vikrant Rana and Pranit Biswas

In the modern age of unceasing celebrity adulation, the paparazzi is an often vilified organism. It has always been pitched as a battle between the private lives of celebrities, and the relentless hunger of the paparazzi’s lenses, seeking profit from unearthing scandals in the private lives of the rich and famous. But tables have turned of late, when celebrities, looking to post content designed to start a buzz, are in fact pilfering paparazzi photos to post on their own social media. Coming a full circle, media agencies have started suing celebrities for copyright infringement for taking paparazzi photos and sharing them without license or consent.

In 2012, French magazine Closer was sued by the Duchess of Cambridge, Kate Middleton, when they had published photographs of her, without her consent, while she was on vacation with her family. The magazine was ordered to hand over all the digital copies of the impugned photographs, and even paid a fine of Euros 2,000[1]. Contrast that with the case of the internationally renowned supermodel, Gigi Hadid, being sued by a media agency, Xclusive-Lee[2] in 2019 for using a photograph taken by paparazzi on her social media without their consent.

Recently, former Indian cricket captain, Virat Kohli was in Leicester, England, playing a test-match series, when John Mallet, a photographer for Leicestershire and ECB, took some shots of him which the cricketer later shared from his official social media handles. Seeing this, the photographer was amazed and instantly replied “Hugely humbled that one of the world’s greatest players chose to use some of my images from the game with @leicsccc on his personal media accounts. A privilege to have been able to capture these shots. Thanks to VK & every one @BCCI for your support[3]”.

While in this particular instance, the photographer reacted positively to the situation, given the Gigi Hadid case, we can see that paparazzi may very well stake their copyright claim on pictures captured by them, even when voluntarily shared by the subject celebrity, but ignoring accreditation of source, license or permission to use prima facie copyrighted third party material.

 

Laws in India

Under Section 2(d)(iv) of the Copyright Act, 1957, it is clear that any person taking a photograph is the author of that work, and the copyright is explicitly provided for under Section 17 of the Act. A photograph is considered to be an artistic work for the purpose of Indian copyright law (Section 2(c)(i) of the Act).

While personality rights have not yet been indoctrinated under law in India, unlike several Western nations, but the principle has been upheld in various Supreme Court judgements. In the ICC Development case[4], the Hon’ble Supreme Court had held that a person’s voice, signature and traits would constitute their personal rights.  Additionally, in Titan Industries Ltd vs. Ramkumar Jewellers[5], regarding ‘personality rights’, the Court had stated that it is an “enforceable right in the identity or persona of a human being.

Under these circumstances, it is clear that, by the operation of Indian law, John Mallet was in fact the rightful copyright owner of the pictures taken of Virat Kohli, and that the former Indian skipper’s action of sharing them on social media without his consent could have been called out as copyright infringement.

                                                                            

Do the Subject Celebrities have any Rights?

In the case of Garware Plastics and Polyester v. Telelink and Ors[6], the question of a subject celebrity’s recourse to the defence of fair use was dealt with. It was held that:

No celebrity would be able to claim fair use or fair dealing under Section 52 of the Copyright Act, with respect to copyrighted photographs, as even though the Act provides for “private and personal use”, sharing of the photograph on a public account is beyond the scope of public communication and has a clear commercial aspect. Communication is only considered private, when it is made to a restricted audience. Posts made on social media do not have the privilege of being called private communication when they are made on a public account.  Since the owner of a copyright possess the right of communication to the public, and posting of such photograph prima facie amounts to ‘public communication’, an assertion of fair use by the celebrity in such context, would not be construed as a valid defense, as it is the exclusive right of the owner.

 

But what if the Photograph is not Copyrighted?

In the Gigi Hadid case, Ms Hadid took the defense that since she had posed for the photograph and was in charge of her appearance, she should be considered a joint co-author of the work. For a photograph, the subject matter does play a role in the rights of the work. However, in the present case, while Gigi Hadid ultimately prevailed, the same was not because the Learned Judge accepted the argument of co-authorship, but because the paparazzi agency did not possess a copyright registration over the photo in question prior to filing the suit, although they had filed an application and the same was pending at that time.

However, what was deemed as more controversial by many commentators at that time was that the Court’s decision was predicated upon a Supreme Court ruling (in Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC[7]) which was passed subsequent to filing of the suit! The said SCOTUS case basically ruled that copyright registration is a pre-requisite for making a case of infringement (which, as many readers would note, is not a pre-requisite in India, or in fact in any state signatory to the Berne Convention). Thus, the Court did not adjudge upon the rather crucial question of whether such celebrities can be considered to be co-authors and/or if such usage falls under the ambit of fair-use.

In the aforementioned case of Gigi Hadid, a four pronged argument was made on the basis of these factors and fair use was asserted.

  • She argued that the purpose of re-sharing the photograph was purely personal and not commercial, and thus it shouldn’t constitute a violation of the copyright.
  • Secondly, the candid photograph clicked on the streets made it a factual work and not a creative one, since no set-up or preparation was involved.
  • Additionally, since Hadid used only a part of the photograph and not the entire image (as the image was purportedly cropped to increase the focus on her), a significant amount of the work was not used.
  • Lastly, as Hadid used the work after it had already been published, there was thus no real impact on the economic output of the photograph borne out of her act.

Under US copyright laws, an ambiguity can be seen as an author is defined as “Since 1978, other than as an employee, the creator of a work owns the copyright, unless the creator transfers the rights to another in writing,” whereas in India the definition of an author is much clearer as laid down in Section 2(d) of the Copyright Act, where an author has been defined: “in relation to a photograph, the person taking the photograph”.

Internationally, even in nations where moral rights, as a necessary addition to standard copyright, is recognized and maintained, vis-à-vis photographs, the moral rights still stand vested with the author, that is the photographer. However, ethical debates rage on regarding the moral rights of the subjects of photographs[8], and whether they must in fact relinquish all rights in the use of their image once it has been captured. While in cases where the subjects have provided express consent, the matter is more clear cut, in cases of paparazzi photos, which are almost always without any form of consent of the subjects, the right of the subject to use or prevent use of such photos may be discussed with a view on the broader principle of moral rights in copyrighted works alongside the more traditional argument of violation of right to privacy.

Conclusion

There is a need for the courts and Legislature to balance the interests of both, celebrities and photographers. There is no doubt, that sharing paparazzi photographs is a violation of the copyright held by the photographers under Indian copyright law, insofar as the fact that the photographer is the author as well as first owner of the photograph according to Section 2(c)(i) read with 2(d) of the Copyright Act, 1957. Thus, in order to factor in the current paradigm regarding celebrities and paparazzi photographers, the question of co-authorship, or even co-ownership, in this context, needs to be specifically addressed.

A legislative change, either by way of amendment to the Act, or by judicial interpretation, is the only way to ensure that rights and liabilities are balanced in similar scenarios. There has been limited judicial research into this topic, although the ownership of the copyright is not in question. An approach to personality rights in a detailed manner, which would further outline the relationship in question, has become a requirement. Especially in this day and age, a balanced and holistic view is the need of the hour, which provides for a mutually profitable ecosystem.

This article was first published on Bar & Bench here .

[1] https://www.nickiswift.com/78195/celebs-sued-paparazzi-going-far/?utm_campaign=clip

[2] Xclusive-Lee, Inc. v. Hadid, 19-CV-520 (PKC) (CLP) (E.D.N.Y. Jul. 18, 2019)

[3] https://www.timesnownews.com/sports/cricket/leicestershire-photographer-reacts-after-virat-kohli-uses-photos-on-twitter-clicked-by-him-during-warm-up-game-article-92513734

[4] ICC Development (International) Ltd. v. Arvee Enterprises and Anr., 2003 (26) PTC 245.

[5] Titan Industries Ltd v. Ramkumar Jewellers, 2012 (50) PTC 486 (Del).

[6] AIR 1989 Bom 331

[7] FOURTH ESTATE PUBLIC BENEFIT CORP. v. WALLSTREET.COM, LLC, ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT No. 17–571. Argued January 8, 2019—Decided March 4, 2019; https://www.supremecourt.gov/opinions/18pdf/17-571_e29f.pdf

[8] https://monoskop.org/images/8/8d/Grossl_Katz_Ruby_Image_Ethics_The_Moral_Rights_of_Subjects_in_Photographs_Film_and_Television.pdf

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