Indian IP Office – Special Drive for Disposal of Opposition and Rectification Matters
‘Bug fixes’ in the Information Technology Rules, 2021?
Is Virat Kohli – Bowled over by Copyright Misuse?
Intellectual Property Trends In Bangladesh (2010-2022)
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 Firstly, it enacted the Trademark Rules, 2015 that repealed the old Trademark Rules, 1963 and secondly, it brought amendments to its Trademark Act, 2009.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
Patents Filing and Registration Trends in Bangladesh
Design Applications Received: Residents vs Non-residents
Designs Registered; Residents vs Non-residents
Conclusion
Source: Department of Patents, Designs and Trademarks, Bangladesh
dpdt.gov/
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Special Drive for Disposal of Opposition and Rectification Matters- Indian IP Office
In 2021 ‘Bug fixes’ in the 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:
- 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.
- 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
- 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 Ban google analytics data privacy
[3] Orders to take down content under Section 69 of the IT Act are not public
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Draft Information Technology [Intermediaries Guidelines (Amendment) Rules], 2018
Virat Kohli- Bowled over by Copyright Misuse?
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] Celebs sued paparazzi going far
[2] Xclusive-Lee, Inc. v. Hadid, 19-CV-520 (PKC) (CLP) (E.D.N.Y. Jul. 18, 2019)
[3] Leicestershire photographer reacts after virat kohli uses photos on twitter clicked by him during warm up game article
[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; CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
[8] Grossl Katz Ruby Image Ethics The Moral Rights of Subjects in Photographs Film and Television
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