Notice for the12th Qualifying Examination for Indian Nationals Holding Foreign Law Degrees

Legal System Update:
NOTICE FOR THE 12TH QUALIFYING EXAMINATION FOR INDIAN NATIONALS HOLDING FOREIGN LAW DEGREES

Read more

Screen Shot 2017-05-30 at 9.23.52 AM

Date of Notification: 25/05/2017

The 12th qualifying examination for Indian nationals/citizens holding foreign law degrees is scheduled to be held from 26th June 2017 to 1st July 2017 at the premises of the Bar Council of India at 21, Rouse Avenue Institutional Area, New Delhi

It shall comprise 6 papers of 100 marks, containing subjective questions spread over three parts viz. A, B, and C

Part A will have six questions in which there will be an option to answer any five questions out of the six questions. Each question shall carry 5 marks for the correct answer. Thus Part A shall be of (5X5 marks); 25 marks in all.

Part B shall carry four questions, with an option to answer any three questions. Each question shall carry 15 marks for the correct answer. Thus Part B shall be of (15X3 marks); 45 marks in all.

Part C shall have two questions out of which any one question is required to be answered. Each question shall carry 30 marks for the correct answer. Thus Part C shall be of (1X30 marks).

The examination shall be held from 11.00 AM to 2.00 PM daily between 26/6/2017 to 01/07/2017.

The syllabus and schedule of papers is as follows:

DATES EXAM
26/6/ 2017 Constitution of India
27/6/ 2017 Contract Law & Negotiable Instruments Act
28/6/ 2017 Company Law
29/6/ 2017 Civil Procedure Code and Limitation Act
30/6/2017 Criminal Procedure Code
01/7/2017 Indian Legal Profession and Code of Ethics

Please Note: The hall/admit cards for the candidates giving the qualifying exam will be issued in due course with further relevant information.


Information Curtsey: Bar Council of India

Please Note: For any further information and confirmation of this notification only with the Bar Council of India Website. The information in this regard on Bar Council of India website will be treated as final. 

FAQs on Copyright Laws of India

Copyright is the most common law that we come across and yet we are least aware of it. The FAQs tries to provide answers to common queries under the subject. Read here.

Read more

know-your-laws


Qs. What is the purpose of registration of copyright?

The purpose of copyright registration is to place on record a verifiable account of the date and content of the work in question so that in the event of a legal claim, or a case of infringement or plagiarism, the copyright owner can produce a copy of the work from an official government source. In general, copyright registration is a legal formality intended to make a public record of the basic facts of a particular copyright. However, registration is not a condition precedent of a copyright protection. Indian Copyright Act, 1957 is the governing law and it extends to the whole of India.


Qs.  What are the types of work that get copyright protection?

Literary Works

It includes books, newspaper articles, and blog posts. Even the email would be considered a literary work. Computer software or program can be registered as a ‘literary work’. As per Section 2 (o) of the Copyright Act, 1957, “literary work” includes computer programs, tables, and compilations, including computer databases.

Musical Works

It includes musical notations of all kinds. The copyright of musical work vest with the music composer.

Dramatic Works

It includes plays, screenplays, and TV scripts, recitation, choreographic work.

Choreographic Works

It includes dances, ballets, and mime performances.

Pictorial, graphic, and sculptural works

It includes paintings, drawings, photographs, and digital illustrations. Indian Copyright Act, 1957 says, if you have shot the photograph and you either have the film negative / raw file of the photograph, you own the copyright of it unless you are under contract by any company. You do not require to register your photograph before making it public.

Motion pictures and other audiovisual works

It includes movies, live webcasts that are being saved, slideshows, and video podcasts.

Sound Recordings

While the musical notes that make up a song are protected as a musical work, the actual recording of that performed notation is protected as a sound recording. Sound recordings are a distinct and independent category from musical recordings because they also include everything that can be recorded and reproduced that isn’t music, including speeches, sound effects, and audio books.

Architectural Works

Buildings that have elements that meet the general requirements for protection particularly if they have sufficiently original design elements and designs that are independent of the utilitarian purposes of the building can be protected by copyright law. India is a signatory to Berne Convention as well as Universal Copyright Convention and therefore, work protected in Berne Signatory countries will be automatically protected under Berne Signatories countries without registration in India. Berne Convention, 1908 is the starting point of protection of architectural work.


Qs.  What is the process of registration of Copyright?

Section 44 of the Copyright Act, 1957 provides for the registration of all works in which copyright subsists.

  • Application for registration is to be made on Form XIV (Including Statement of Particulars and Statement of Further Particulars) as prescribed in the first schedule to the Rules. Each and every column of the Statement of Particulars and Statement of Further Particulars should be replied specifically. Statement of Further Particulars includes-Literary, including Software, Dramatic, Musical and Artistic Works only).
  • Separate applications should be made for registration of each work.
  • Each application should be accompanied by the requisite fee prescribed in the second schedule to the Rules.
  • The applications should be signed by the applicant including the statement of particulars.
  • Both published and unpublished works can be registered. Copyright in works published before 21st January 1958, i.e., before the Copyright Act, 1957 came in force, can also be registered, provided the works still enjoy copyright.
  • As per the Rule 70 (5) for registration of Computer Programme or Software, the applicant should provide source code and object code.
  • In the case of Sound Recording & Cinematograph category enclose the copy of the agreement. If no agreement is made please obtain NOC from various copyright holders and enclosed the same with the application.
  • When a work has been registered as unpublished and subsequently is it published, the applicant may apply for changes in particulars entered in the Register of Copyright in Form V as prescribed in the first schedule to the Copyright Rules, 1958, along with the prescribed fee and in accordance with Rule 16 of the Copyright Rules, 1958.

Qs. What are ways of registering copyright?

Acquisition of copyright is automatic and it does not require any formality. Copyright comes into existence as soon as a work is created and no formality is required to be completed for acquiring copyright. However, certificate of registration of copyright and the entries made therein serve as prima facie evidence in a court of law with reference to dispute relating to ownership of copyright. Any individual who is an author or rights owner or assignee or legal heir of the work can file an application for copyright of a work either at the copyright office or by post or by e-filing (online) facility through the official copyright web-site- www.copyright.gov.in. The applications for registration of works can be filled at the counter provided at the Copyright Office within a specified period of time. The Copyright Office has been set up to provide registration facilities to all types of works and is headed by a Registrar of Copyrights and is located in New Delhi.

Qs. What is the checklist of documents for making an application for registration?

checklist-41335_960_720

[As provided on the government website]


Qs. What is the term of copyright protection in India?

The general rule is that copyright lasts for 60 years. In the case of original literary, dramatic, musical and artistic works, the 60 year period is counted from the year following the death of the author. In a case of cinematography films, sound recordings, photographs, posthumous publications, anonymous and pseudonymous publications, works of government and works of international organisations, the 60 year period is counted from the date of publication.


Qs. Whether is the anonymous or pseudo-anonymous work is copyrighted in India?

In the case of a literary, dramatic, musical or artistic work (other than a photograph), which is published anonymously or pseudonymously, copyright shall subsist until 63[sixty] years from the beginning of the calendar year next following the year in which the work is first published. Provided that where the identity of the author is disclosed before the expiry of the said period, copyright shall subsist until 64[sixty] years from the beginning of the calendar year next following the year in which the author dies. If references to the author shall, in the case of an anonymous work of joint authorship, be construed,-

(a) where the identity of one of the authors is disclosed, as references to that author;

(b) where the identity of more authors than one is disclosed, as references to the author who dies last from amongst such authors.

References to the author shall, in the case of a pseudonymous work of joint authorship, be construed,-

(a) where the names of one or more (but not all) of the authors are pseudonymous and his or their identity is not disclosed, as references to the author whose name is not a pseudonym, or, if the names of two or more of the authors are not pseudonyms, as references to such of those authors who dies last;

(b) where the names of one or more (but not all) of the authors are pseudonyms and the identity of one or more of them is disclosed, as references to the author who dies last from amongst the authors whose names are not pseudonyms and the authors whose names are pseudonyms and are disclosed; and

(c) where the names of all the authors are pseudonyms and the identity of one of them is disclosed, as references to the author whose identity is disclosed or if the identity of two or more of such authors is disclosed, as references to such of those authors who dies last.

Explanation.- For the purposes of this section, the identity of an author shall be deemed to have been disclosed, if either identity of the author is disclosed publicly by both the author and the publisher or is otherwise established to the satisfaction of the Copyright Board by that author.


Qs. What is the term of copyright in the posthumous work? 

In the case of a literary, dramatic or musical work or an engraving, in which copyright subsists at the date of the death of the author or, in the case of any such work of joint authorship, at or immediately before the date of the death of the author who dies last, but which, or any adaptation of which, has not been published before that date, copyright shall subsist until 65[sixty] years from the beginning of the calendar year next following the year in which the work is first published or, where an adaptation of the work is published in any earlier year,


Qs. How is the jurisdiction in copyright work decided? 

There is no such thing as an “international copyright” that will protect an author’s works throughout the world with a single registration (unlike the multi-jurisdictional protection provided by a patent filing under the Patent Cooperation Treaty). Copyright law is “territorial” and national in scope. Regardless of where the author lives or where the work was first published, the copyright protection afforded to a work depends on the national laws of the country in which the author seeks protection.  Copyright in a work of nationals of countries who are members of the Berne Convention for the Protection of Literary and Artistic Works, Universal Copyright Convention and the TRIPS Agreement are protected in India. These rights are protected in India through the International Copyright Order. If the territorial extent of assignment of the rights is not specified, it shall be presumed to extend to the whole of India. The jurisdiction for infringement of copyright is filed within the district court having jurisdiction.

ABOUT THE AUTHORS

4. Aparna (1)

The article is co-authored by the Team Indian Law Watch and Intern Aparna Agarwal, a second year Law Student from Symbiosis Law College, Noida.

Legal News Update from Ministries 2017

Legal updates from various Ministries of India.

Read more

A. CABINET DECISIONS

1A. Cabinet approves Protocol amending the  Convention between India and Portugal for the avoidance of double taxation (April 19, 2017) The Union Cabinet chaired by Prime Minister of India has approved the signing of the Protocol for amending the Convention between India and Portugal for the avoidance of double taxation. The Protocol will also ensure prevention of fiscal evasion with respect to taxes on income.  It further said that once the protocol enters into force, both India and Portugal would be able to exchange tax-related information, which will help tax authorities of both countries to curb tax evasion.  This Convention was in force since April 30, 2000. The Convention was applying to following categories mentioned below. This Convention shall apply to taxes on income imposed on behalf of a Contracting State or of its political or administrative sub-divisions or local authorities, irrespective of the manner in which they are levied.

modi cabinet 2014

This Convention was in force since April 30, 2000. The Convention was applying to following categories mentioned below. This Convention shall apply to taxes on income imposed on behalf of a Contracting State or of its political or administrative sub-divisions or local authorities, irrespective of the manner in which they are levied.

(a) This Convention shall apply to taxes on income imposed on behalf of a Contracting State or of its political or administrative subdivisions or local authorities, irrespective of the manner in which they are levied.

(b) There shall be regarded as taxes on income all taxes imposed on total income or on elements of income, including taxes on gains from the alienation of movable or immovable property and taxes on the amounts of wages or salaries paid by enterprises.

(c) The existing taxes to which this Convention shall apply are in particular:

In the case of Portuguese Republic:

S.NO CATEGORIES
(i ) Personal income-tax
(ii ) Corporate Income-tax ;
(iii ) Local surtax on corporate income-tax;

In the case of Republic of India, income tax including any surcharge thereon.

The Convention shall apply also to any identical or substantially similar taxes which are imposed after the date of signature of the Convention in addition to, or in place of, the existing taxes.

1B. An Agreement on Social Security (SSA) between India and Portugal was already signed on 4th March 2013 in New Delhi. On February 7,  2017, Portugal on completion of the relevant constitutional and legal formalities conveyed to the Indian side that it is ready to bring the SSA into force. Accordingly, the SSA between India and Portugal would come into force on 8th May 2017.

The SSA with Portugal will provide the following benefits to Indian nationals working in Portugal:

  • For short term contract, up to 5 years, no social security contribution would need to be paid under the Portuguese law by the detached workers provided they continue to make social security payments in India. The above benefits shall be available even when the Indian company sends its employees to the Republic of Portugal from a third country.
  • Indian workers shall be entitled to the export of the social security benefit if they relocate to India after the completion of their service in Portugal. Self-employed Indians in Portugal would also be entitled to the export of social security benefit on their relocation to India.
  • The period of contribution in one contracting state will be added to the period of contribution in the second contracting state for determining the eligibility for social security benefits.

1C. India and Tunisi

Screen Shot 2017-05-02 at 10.43.20 AM (1)


B. MINISTRY OF CORPORATE AFFAIRS

Screen Shot 2017-05-07 at 7.00.18 PMThe Ministry has provided for the incorporation of a company in one day with following features outlined.

REDUCTION IN PROCEDURES: Five Procedures for Starting a Business are now integrated and can be done simultaneously in One step. Using the newly launched integrated e-Form SPICe, stakeholders now apply for Company Name, Company Incorporation, DIN of the directors, PAN and TAN for the newly incorporated company, and avail all FIVE services simultaneously. The requirement of a company seal has also been removed vide Company (Amendment) Act, 2015.

REDUCTION IN COST/FEES: The fee for incorporation (of the integrated e-Form SPICe /INC-32) has been reduced from INR 2000 to INR 500. The cost incurred by a company for company seal is also eliminated, as the requirement for a company seal has been removed vide amendment to the Companies Act, 2013.

REDUCTION IN TIME: The time taken for processing company incorporation applications has been reduced drastically from between 5 to 15 working days in June 2014, to an average of 0.6 working days in March 2017. Similarly, the processing time for name availability applications has been brought down significantly from between 5 to 6 working days in June 2014, to an average of 0.4 days in March 2017. In addition, more than 90% applications are being approved within 1 working day.


C. MINISTRY OF CONSUMER AFFAIRS, FOOD & PUBLIC DISTRIBUTION

jagologo (1)Service Charge levied by Resturants: Clarification issued by Ministry. Payment of service charge with the hotel bills is not uncommon. Many complaints were raised related to it and hence the Ministry has issued following press release on the issue

13. MOCA


D. MINISTRY OF WATER RESOURCES, RIVER DEVELOPMENT, AND GANGA REJUVENATION

1.  Draft of National Water Framework Bill, 2016

Screen Shot 2017-05-03 at 8.01.15 AM

2. Model Bill for the Conservation, Protection, Regulation and Management of Groundwater, 2016: Comments and suggestions are invited by the Ministry.

Screen Shot 2017-05-03 at 7.57.14 AM


E. MINISTRY OF WOMEN AND CHILD DEVELOPMENT

1. Standard Operating Procedure for Missing Children: as provided on the Ministry of Women and Child Development Website is given below.

Screen Shot 2017-05-02 at 10.08.58 AMThe Hon’ble Supreme Court of India in Bachpan Bachao Andolan vs. Union of India (WP (Civil) 75 of 2012) on 10th May 2013 had directed formulation of a Standard Operating Procedure for cases of Missing Children. The Juvenile Justice (Care and Protection of Children) Act, 2015 under section 2 (14) (vii) includes a „Missing Child‟ as a „child in need of care of protection‟ and in Rule 92 of the “Juvenile Justice (Care and Protection of Children) Model Rules, 2016”, a procedure of inquiry regarding a missing child has been laid down.


F. DEPARTMENT OF EMPOWERMENT OF PEOPLE WITH DISABILITIES

The Department has issued notification dated March 10, 2017, for objections and suggestions on the Rights of Persons with Disabilities Rules, 2017

visual-ID-EN


G. MINISTRY OF TOURISM

Screen Shot 2017-05-06 at 3.31.33 PM


H. MINISTRY OF TEXTILE

Screen Shot 2017-05-06 at 3.40.45 PM


I. MINISTRY OF ROAD TRANSPORT AND HIGHWAYS

Screen Shot 2017-05-28 at 7.52.26 AM


References 

Website of the Ministries

European Union: Sale of devices that make Piracy Easier- Violation of Copyright

The Treaty of Lisbon came into force on 1 December 2009, the European Union now has legal personality and has acquired the competencies previously conferred on the European Community. Community law has, therefore, become European Union law. The present case is relating to the decision on the sale of devices that make piracy easier is a violation of copyrights.

Brief Facts: The fact of the case was regarding the multimedia player “films peeler”, which was the interface between the source of the audiovisual device and television screen. This player was allowing the user to watch the content without the copyright holder permission for some content. The European Court of Justice, in this case, has recently ruled that devices with pre-installed software that make it easier to stream pirated content may violate a European Union (EU) Copyright Protection directive (“Directive”).

The article 23 of the said directive provides to harmonise the authors right to communication to the public. Article 3 provides that the member states shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.

In this case the court determined that the sale of such multimedia players, often including popular so-called “streaming sticks,” constitute a “communication to the public” that falls within the definition of the statute, which is prohibited. Because the purpose of the directive was to create a high level of protection for authors, the court held that “communication to the public” must be interpreted broadly. The court found that even temporary acts of reproduction of copyrighted work by streaming on a third party website that offers the work without the copyright holder’s consent cannot be exempted from the right of reproduction. It was argued selling of the multi-media player was considered as a breach of communication to the public.

Screen Shot 2017-04-30 at 8.13.17 PM

Under the Directive, an act of reproduction is only exempt from the right of reproduction if it satisfies five conditions, namely:

(1) the act is temporary,

(2) it is transient or incidental,

(3) it is an integral and technical part of a technological process,

(4) the sole purpose of that process is to enable a transmission in a network between third parties by an intermediary or a lawful use of a work or subject matter, and

(5) that act does not have any independent economic significance. Those conditions are cumulative in the sense that non-compliance with one of them will lead to the act of reproduction not being exempted. Furthermore, the exemption is to be applied only in certain special cases, which do not impair the normal exploitation of the work or other subject-matter and do not unreasonably prejudice the legitimate interests of the right holder.


References

1.  Court of Justice of European Union [Press Release 40/17]

Lex Resonance: New Round Up 2017

Important news capsule from Facebook page of @indianlawwatch.

Read more

Lex Resonance

A. CONSTITUTIONAL LAW UPDATE

indian-constitution

1. Power to Punish Contempt: The power to punish for contempt vested in a Court of Record under Article 215 does not, however, extend to punishing for the contempt of a superior court. Such a power has never been recognised as an attribute of a court of record nor has the same been specifically conferred upon the High Courts under Article 215. If Supreme Court does not, despite the availability of the power vested in it, invoke the same to punish for its contempt, there is no question of a Court subordinate to the Supreme Court doing so.

screen-shot-2017-01-16-at-8-40-29-am


B. CIVIL LAW UPDATE

1. No need to change the name in Passport for women on Marriage and Divorce:

indian-passport-renewal-or-re-issue-documents-list

The Prime Minister Narendra Modi has said that there was no need for a woman to change her name on the passport after marriage or divorce and that she could get the travel document by giving the names of either of her parents. There has been an important change in passport rules.  It will be up to her to have either the name of her father or mother on the passport.

2. Supreme Court declined urgent hearing in a request for a SIT Probe in Saharanpur Case (May 26, 2017): 

03

The Supreme Court on Friday refused an urgent hearing on a plea seeking a probe by a Special Investigation Team (SIT) into the recent incidents of caste violence in Uttar Pradesh’s Saharanpur district. A vacation bench comprising Justices L. Nageswara Rao and Navin Sinha said there was no urgency and the petition may be heard after the court’s summer break.


C. CRIMINAL LAW UPDATE

1. Nirbhyay Case: 

download

The Supreme Court upheld the death sentences of four convicts of the brutal gang-rape and murder of 23-year-old physiotherapy student. Terming the crime as brutal, barbaric and diabolic, the court said the incident shook the conscience of humanity and they deserved the extreme punishment. A bench headed by Justice Dipak Misra, while upholding the death sentence awarded to the four convicts—Pawan Kumar Gupta, Vinay Sharma, Mukesh and Akshay Kumar Singh—observed that the DNA profile developed from the blood stains obtained from the iron rods was consistent with the DNA of the victim.

2. article-2146026-13252D5E000005DC-541_224x423Three men to be sentenced for an attempt to murder charge against the Judges of Delhi Higher Judiciary: The three men were found guilty by a Delhi Court of attempting to murder three judges by hurling bricks at them in an alleged incident of road rage in 2012. The court observed that the judges while testifying, had remained unchallenged. Testimony of material witnesses of the prosecution shows that the accused became angry after seeing the sticker of ‘judge. On May 17, 2012, around 5 pm, three judges, Inderjeet Singh, Manoj Nagpal and Ajay Garg, were traveling in an official car. Two men on a bike hit it and fell, and when the driver of the car tried to talk, they got into a scuffle with him and abused him. The two men were identified as Anil Raj and Rohit, who were accused of passing threats and asking two more men to join them. The four men, it was further alleged, picked up bricks from a nearby pile and started hurling at the car, breaking its windshield. The three judges supported the testimony of the driver. While one of the judges, Garg, was hurt on his head and bled in the melee, Singh was “dragged” out of the car.  While one accused is on the run, Anil, Rohit, and Prashant were convicted on charges of attempt to murder. Anil and Rohit were also charged with offenses such as assault and causing hurt to a public servant. The court is yet to decide on the quantum of their punishment.


D. FAMILY & PROPERTY LAW UPDATE

Paper cutout family with divorce related messages

1.  Commercial Surrogacy: Commercial surrogacy has been legal in India since 2002. In 2008, the Supreme Court of India in the Manji’s case (Japanese Baby) has held that commercial surrogacy is permitted in India with a direction to the Legislature to pass an appropriate Law governing Surrogacy in India. At present, the Surrogacy Contract between the parties and the Assisted Reproductive Technique (ART) Clinics guidelines are the guiding force. The Law Commission of India has specifically reviewed the Surrogacy Law keeping in mind that in India that India is an International Surrogacy destination.

International Surrogacy involves bilateral issues, where the laws of both the nations have to be at par/uniformity else the concerns and interests of parties involved will remain unresolved and thus, give due regard to the concerns and in order to prevent the commercialization of the Human Reproductive system, exploitation of women and the commodification of Children, the law commission has submitted its report with the relevant suggestion.

The Law Commission of India has submitted the 228th Report on “NEED FOR LEGISLATION TO REGULATE ASSISTED REPRODUCTIVE TECHNOLOGY CLINICS AS WELL AS RIGHTS AND OBLIGATIONS OF PARTIES TO A SURROGACY. The following observations had been made by the Law Commission: –

(a)  Surrogacy arrangement will continue to be governed by contract amongst parties, which will contain all the terms requiring consent of surrogate mother to bear child, agreement of her husband and other family members for the same, medical procedures of artificial insemination, reimbursement of all reasonable expenses for carrying child to full term, willingness to hand over the child born to the commissioning parent(s), etc. But such an arrangement should not be for commercial purposes.

(b) A surrogacy arrangement should provide for financial support for a surrogate child in the event of the death of the commissioning couple or individual before delivery of the child, or divorce between the intended parents and subsequent willingness of none to take delivery of the child.

(c)  A surrogacy contract should necessarily take care of life insurance cover for a surrogate mother.

(d) One of the intended parents should be a donor as well because the bond of love and affection with a child primarily emanates from the biological relationship. Also, the chances of various kinds of child abuse, which have been noticed in cases of adoptions, will be reduced. In case the intended parent is single, he or she should be a donor to be able to have a surrogate child. Otherwise, adoption is the way to have a child which is resorted to if biological (natural) parents and adoptive parents are different.

(e) The legislation itself should recognise a surrogate child to be the legitimate child of the commissioning parent(s) without there being any need for adoption or even declaration of guardian.

(f) The birth certificate of the surrogate child should contain the name(s) of the commissioning parent(s) only.

(g) The right to privacy of donor as well as a surrogate mother should be protected.

(h) Sex-selective surrogacy should be prohibited.

(i) Cases of abortions should be governed by the Medical Termination of Pregnancy Act 1971 only.

The Law Commission has strongly recommended against Commercial Surrogacy. However, this is a great step forward to the present situation.  Israel the first country in the world to implement a form of state-controlled surrogacy in which each and every contract must be approved directly by the state.

Present Law Related to Surrogacy surrogacy-law

There is a proposed legislation that aims at proper regulation and supervision of ART clinics and banks in the country. Some of the important developments include:

The government has proposed that surrogacy for foreigners in India shall not be allowed but surrogacy shall only be permissible to overseas citizens of India (OCIs), people of Indian origin (PIOs), non-resident Indians (NRIs) and any foreigner married to an Indian citizen. The eligible couple will have to produce a duly notarized agreement with the prospective Indian surrogate mother. Further, they have to produce an undertaking that they would take care of the child/children born through surrogacy.

For foreigners married to an Indian because there are other conditions to do so. The Bill makes it mandatory for the couple to be married with the marriage sustaining for at least two years. They will further need to submit a certificate, attested by the appropriate government authority of that country, conveying that the woman is unable to conceive.

The government has also said that the child born to a foreigner married to an Indian citizen by sperm or egg donation, or surrogacy in India, then the child will not be an Indian citizen, despite being born in India, and will be entitled to Overseas Citizenship of India under Section 7A of the Citizenship Act, 1955.

The ART Bill also has stern rules for surrogates. It says that any woman agreeing to act as a surrogate shall be duty-bound not to engage in any act, including unprotected sex that may harm the foetus during pregnancy and the child after birth, until the time the child is handed over to the designated commissioning couple.


E. BANKING & FINANCE LAW UPDATE

finance

1. Privacy Issue on Mobile Payments: There’s been a surge in transactions through the mobile payment channel. But are mobile payments secure? A study by the Centre for Software and IT Management (CSITM) at IIM Bangalore (IIM-B) raises significant questions on the risks associated with mobile phone-based payment systems.

The study evaluated the apps on the following six key security principles for electronic banking transactions: the potential for confidentiality breaches; the management of the transactions for subsequent repudiation; the strength of the authentication process; the data and transaction integrity procedures; the extent of access and availability of services; and the procedures for maintaining privacy of customer information.

CONCERNS

The study found serious privacy concerns with all the services. For instance, while in many apps like Freecharge, the wallets are not directly linked to third-party vendors (such as Uber or BigBasket), apps such as Paytm allow for automatic linkage with the vendors and they can deduct amounts without the explicit consent of the user. Potential for confidentiality breaches was a problem observed in all the mobile payment methods, except USSD. A recurring security concern was that many of the apps do not automatically log the users out, and anyone having access to the phone can make financial transactions through these apps. This risk is highest if the user loses or misplaces her/his mobile phone, and higher still if the phone is unlocked or unprotected. However, apps such as iMobile, BHIM have auto-logout/session time-out features.


2. Whistleblower’s Identity: Barclays has reprimanded Chief Executive Jes Staley and will cut his bonus for attempting to uncover a whistleblower’s identity, the British bank said on Monday, dealing a blow to a man who has been in the role little over 15 months.  Barclays grants whistleblowers anonymity to prevent any retribution for their actions — in keeping with normal UK practice.  The board, which said it accepted Staley’s explanation that he was trying to protect a colleague from what he believed to be an unfair attack, will back his reappointment at the annual shareholder meeting on May 10.  Barclays’ board first heard of Staley’s attempt to identify the author of the letter in early 2017, after the issue was raised by an employee, Barclays said.


3. Insurance cover for Mental Illness: The Mental Healthcare Bill 2016, which got Lok Sabha’s nod last week, will become law once it receives Presidential assent. The Bill makes it mandatory for insurers to provide insurance to the mentally ill. Health insurers are gearing up to bring mental illness, such as depression and anxiety, under insurance cover. The progressive provision, however, may result in more expensive insurance products. While estimate shows that 5-6 percent of the population suffers from some mental health concern, a recent survey conducted by the National Institute of Mental Health and Neuro Sciences (NIMHANS) puts the figure at a much higher 13.7 percent of the adult population, of which, at least 150 million need immediate medical intervention. This vast number is likely to put pressure on the health insurance providers.


3. FDI Policy in Multi Brand:  The government today said there is no proposal under its consideration to review the foreign direct investment (FDI) policy in the multi-brand retail sector. The current foreign direct investment policy permits overseas players to hold 51 percent stake in an Indian retail company. So far, only one foreign player, Tesco, has received approval for opening stores under the multi-brand retail policy.


4. Income Tax Declaration for loan and credit card bills: All cash payments of over Rs 2 lakh for paying loans and credit card bills during the 50-day period post demonetization will have to be disclosed in the new one-page Income Tax return form. The tax department a few days back notified new Income Tax Return (ITR) forms for filing of returns for the Assessment Year 2017-18 (the financial year 2016-17). Besides providing for declaring income, exemption claimed and tax paid, the forms have a new column providing for declaration for any deposit of over Rs 2 lakh in bank accounts made during 9 November and 30 December 2016 after the old 500 and 1,000 rupee notes were demonetized. This column is also to be used for declaring cash payments in excess of Rs 2 lakh for repayment of any loan or settlement of credit card bills during this 50-day period. “The column is an attempt to match the cash deposits made post demonetisation with the annual income,” he said. While all credit cards are linked to permanent account number (PAN) of the holder, almost all loans by scheduled banks are also provided on furnishing of PAN.


5.  Lenders to Reliance Communications (RCom) has placed telecom company under a strategic debt restructuring exercise (SDR).

reliance_communications

An SDR is a debt-recovery programme under which lenders convert debt to equity and sell the business to new owners. Reserve Bank of India (RBI) rules require that banks get control of at least 51% shares in the company through debt conversion and sell the business within 18 months of initiation of SDR. However, RCom’s lenders have agreed to wait until seven months before they convert debt to equity. RCom has debts of over Rs 45,700 crore on its books and it intends to reduce this by Rs 25,000 crore through a merger of its mobile services unit with Aircel and a sale of its interest in the telecom tower business to Canada’s Brookfield. The company’s current market capitalisation is Rs 5,139 crore. This will be the largest-ever debt reduction by a company in the history of India.


F. INTERNATIONAL LAW UPDATE

globe

1. WTO Negotiations on E-commerce: India has joined forces with Cuba to resist pressure from other members of the World Trade Organization to start negotiations on e-commerce rules. Australia, the EU, Norway, and China have stepped up their campaign to include e-commerce in the agenda for the year-end Ministerial meeting in Buenos Aires, and New Delhi is reaching out to countries that share its opposition to the move. At a recent meeting of the WTO’s goods council, India and Cuba took the stand that it was premature to discuss multilateral rule-making in e-commerce, given the digital divide among members. Several other members such as Australia, Switzerland, Norway, Brazil and Argentina, however, said that an agreement on e-commerce was necessary for the WTO to demonstrate its continued relevance.

Enormous pressure

“There is a pressure from both developed and developing countries to bring e-commerce formally on the agenda of the WTO negotiations,” the official said. “India opposes it because once discussions begin, members could try to include a lot of aspects into it, including market access. It, therefore, has to work together with like-minded countries like Cuba.” Cuba particularly took issue with suggestions to negotiate liberalization and market access in e-commerce and emphasized that there was no basis for doing so, he added. Electronic commerce was made a part of the WTO in 1998 but in a limited way. Members had agreed to give a temporary moratorium on import duties on digital transmissions. This moratorium is extended every two years. It was also decided to hold discussions on various aspects of e-commerce, but there was no understanding on negotiating rules.

The stakes in India

The e-commerce sector is extremely sensitive in India as the move to allow foreign investment into the e-retail sector has, so far, been strongly resisted by the owners of small stores who argue that it will disrupt their livelihoods. Allowing multilateral rule-making in the area could lead to political destabilization. The African countries and the least developed countries (LDCs) have not opposed discussions on e-commerce, but they insist that the focus is on the development dimension. Uganda, on behalf of the LDC Group, said that most of the proposals on the table fall outside the scope of the work program on e-commerce and that development should be the focus of e-commerce talks. South Africa, speaking on behalf of the African Group, similarly said it would like the Goods Council to take up issues that place the needs of developing countries and LDCs at its core.


2. Israel has appointed the first-ever female judge to serve in the country’s sharia court system.

israel-woman-judge

The unanimous appointment of Hana Khatib, hailed by some Arab lawmakers as “historic,” was carried out by the Committee to Elect sharia judges, known as qadis, which is headed by Justice Minister Ayelet Shaked. Sharia courts in Israel deal with personal status issues for the Muslim community, such as marriage, divorce, conversion, inheritance and prevention of domestic violence. They have existed in what is now Israel since early Ottoman times and through the British Mandate and were recognized by the State of Israel upon its founding in 1948.


3. Filipino lawyer Jude Sabio filed a complaint against Filipino President Rodrigo Duterte accusing him of extrajudicial killings during his nationwide anti-drugs crackdown.

rodrigo-duterte_F688F305FEF44CDD81AFD75A733335ED

The complaint was filed before the International Criminal Court (ICC) and asks the court to prosecute Duterte over his involvement in the Davao Death Squad. In an accompanying statement, Sabio accused the Duterte of “repeatedly, unchangingly and continuously” committing extrajudicial executions from his term as Mayor of Davao City through to his current presidency. Sabio is asking the ICC to charge Duterte and 11 senior government officials with crimes against humanity and to issue an arrest warrant for them. Over 8,000 people have been killed since Duterte took office last year over drug-related offenses.


4. Roman Seleznev, the son of a member of the Russian Parliament, was sentenced for hacking into more than 500 US businesses, stealing then selling millions of credit card numbers. Seleznev was sentenced to 27 years, the longest-ever sentence for such a crime, and ordered to pay nearly $170 million in restitution. US District Judge Richard Jones took no leniency on Seleznev, despite Seleznev’s pleas for mercy.

271767851  


5.The Alabama Supreme Court upheld the September 2016 Court of the Judiciary decision to suspend Chief Justice Roy Moore for violation of the Cannons of Judicial Ethics by issuing orders contradicting the US Supreme Court’s recognition of same-sex marriage.

Screen Shot 2017-04-30 at 9.15.11 PM


6. A federal judge in Houston has overturned the county’s bail system for people charged with low-level crimes after finding that it disproportionately affected indigent residents and violated the Constitution.

30BAIL-master768

The judge, Lee H. Rosenthal of Federal District Court, ordered Harris County to stop keeping people who have been arrested on misdemeanor charges in jail because they cannot pay bail


7.H1 B Visa:

1-aV9VrlcyFIbKFXGVA_T46w 

U.S. President Donald Trump signed an executive order for tightening the rules of the H-1B visa program to stop “visa abuses.” The executive order also called upon the Departments of Labour, Justice, Homeland Security, and State to take action “against fraud and abuse of our visa programs. H1 B Visa is a non-immigrant visa in the USA under the Immigration and Nationality Act Section 101 (a) 17 (H). A bill has now been re-introduced in the House of Representatives that seeks an exemption for foreign-born persons with an American Ph.D. in science, technology, engineering or mathematics from the limits on the number of employment-based green cards and H-1B visas awarded annually.


G. TRANSPORT & INFRASTRUCTURE LAW UPDATE

1. Proposed Motor Vehicle Amendment Bill doubles penalty:

cars-india_story_647_040617022230_041017041023

Lok Sabha has approved a bill for radical reforms in transport sector that will usher in multi-fold hike in fine for traffic violations, compensation of Rs. 5 lakh for grave injuries, and check bogus licences and vehicle theft. The bill, which seeks to amend nearly 30-year-old Motor Vehicle Act 1988, also calls for 100

a) The bill calls for 100 percent e-governance and will cap maximum liability for third party insurance at Rs. 10 lakh in case of death in a motor accident. The bill proposes a compensation of Rs. 5 lakh. This is not the upper limit. After getting this amount (the affected family) can withdraw the case or appeal. This (Rs 5 lakh) is being done to ensure that there are fewer court cases and immediate compensation is given. The minister also said that it would not be possible to increase the compensation in case of death to Rs.20 lakh as it would entail substantial hike in insurance premium. In the case of death in hit-and-run accidents, the bill provides for an eight-fold increase in compensation to Rs. 2 lakh.

b) The bill seeks to make services like issuance of licenses totally transparent and online and provides for punitive action against officials in case of delay in issuance of the document to eligible applicants. Under the new system, everyone will have to go to the licence issuing authority under a uniform procedure and if the licence is not issued in three days, the RTO will have to face action. A learner’s licence can be availed online sitting at home.

c) The government, he said, has already 786 black spots across the country, which are accident prone.

d) There is a provision in the bill under which if holes are found on roads, DPR designer and contractor would be held accountable.

e) The minister said that the proposal is on strengthening the network of trauma centres has also been received.

f) Euro VI emission norms, Gadkari added, would be made mandatory from April 1, 2020.

g)The bill provides for linking of driving licence and vehicle registration with Adhaar—based platform and heavy penalties for traffic violations.

h) The bill also provides for Aadhaar-based verification for grant of online services including learner’s licence. This would ensure integration of online services and also stop the creation of duplicate licences.

i) Stricter penalties have been proposed for high-risk offenses such as drunken driving, dangerous driving, overloading, non-adherence to safety norms by drivers (such as the use of seat belt, helmets).

j) The bill aims to provide for a national database of vehicles and driving licences that would help in safety and security and avoid malpractices.

k) It also provides specific timelines for processing of insurance claims. A ten-fold increase has been made in the amount of compensation awarded under a simplified process of claims disbursal wherein the family of an accident victim would get compensation of Rs. 5 lakh as a settlement within four months of the accident. Presently it takes at least four to five years for an award.


Intellectual Property Rights Updates: January-April 2016

IPR Policy Statement is the beginning of updates in the section. Please keep visiting the section for more updates soon.

Read more

1. National Intellectual Property Rights Policy:

The slogan adopted by IPR which would be monitored under supervision of Department of Industrial Promotion for all IPR related issues in India- “Creative India; Innovative India: The Union Cabinet has has approved the National Intellectual Property Rights (IPR) Policy that will lay the future roadmap for intellectual property rights in India. The details of the vision document as shared on Press Information Bureau are mentioned below. The Policy recognizes that India has a well-established TRIPS-compliant legislative, administrative and judicial framework to safeguard IPRs, which meets its international obligations while utilizing the flexibilities provided in the international regime to address its developmental concerns. It reiterates India’s commitment to the Doha Development Agenda and the TRIPS agreement.

Vision Statement: An India where creativity and innovation are stimulated by Intellectual Property for the benefit of all; an India where intellectual property promotes advancement in science and technology, arts and culture, traditional knowledge and biodiversity resources; an India where knowledge is the main driver of development, and knowledge owned is transformed into knowledge shared.

Mission Statement: Stimulate a dynamic, vibrant and balanced intellectual property rights system in India to:

  • foster creativity and innovation and thereby, promote entrepreneurship and enhance socio-economic and cultural development, and
  • focus on enhancing access to healthcare, food security and environmental protection, among other sectors of vital social, economic and technological importance.

Seven Objectives

2. Infringement of the Copyright in the Title :(“Desi Boys Case” ):

In Krishika Lulla & Anr. vs. Shyam Vithalrao Dev Kutta [Cr. Appeal 258-259 of 2013]. The main issue was whether there is a copyright in the title of the synopsis of the Respondent No.1. The Respondent in this matter filed a complaint under section 63 of the Copyrights Act later amended to add section 406, 420 read with section 34 of the IPC. The four accused had approached for quashing of FIR under section 482 CrPC, for which no relief was provided and hence they were before the Hon’ble Supreme Court. Respondent No.1 had claimed copyright in the title of the synopsis in the story written with title “Desi Boys”, which was registered with Films Writer Association. A friend told him that son of David Dhawan require a story in comedy genera and the story synopsis was mailed by him. The Respondent No.1 did not receive any response from his friend but suddenly saw the promos of “Desi Boyz” replacing the s with z released. The story that the Respondent No.1 had shared had neither dialogue nor screenplay. According to Appellant, some Milap Zaveri wrote the film under the Agreement. Section 13 of the Copyright Act provide for work in which the Copyright subsist. The apex court held no copyright subsists in the title of the literary work and the Respondent No.1 is not entitled to relief on such basis. This does not mean that a title cannot be a subject of protection anywhere, as was explained in case cited Dicks vs. Yates [(1881) 18 Ch D 79] wherein it was held by Jessel MR that there might be copyright in the title where the whole page of title or something of that kind requiring invention. The court also relied on passages from Copinger and Skone James on Copyright sixteenth edition by Kevin Garnett, M.A. Gallin Davis, D.L. Ph.D and Gwylin Harbottle (B.A) Oxon at page 70 in which the learned authors observed that “The court should not rule out the possibility of such protection in appropriate circumstances although the practice in no case has gone this far. The only concrete example which has been given judicially is now archaic practice of the title page of the book consisting of an extended passages of texts ”. In relation to copyright in characters and titles the learned authors observed that “It is very difficult to protect the titles of films by an action of infringement of copyright due to the requirement of the originality and that the substantial part of the work be copied. If a well-known title is used without authority the owner’s remedy will lie in passing off. Protection in terms of registration of trademark would be available provided the title is distinctive.” The apex court in view of the above held that there was no copyright in the title hence no question of infringement arose.

Laws on Copyright of Software

Economic and social development of a society is dependent on protection and encouragement given to its creativity. Registration of a copyright for a matter ensures certain minimum safeguards of the rights of authors over their creations, thereby protecting and rewarding creativity.

Read more

Introduction about Copyright

Economic and social development of a society is dependent on protection and encouragement given to its creativity. Registration of a copyright for a matter ensures certain minimum safeguards of the rights of authors over their creations, thereby protecting and rewarding creativity. However, under Indian law, obtaining the registration is not prerequisite for obtaining copyright in a work.

The Copyright Act, 1957 (“Act”) along with the Copyright Rules, 1958 is governing law for copyright matters. The Act was substantially amended in 2012. The author of the work is the first owner of the work. The Act provides to protect the efforts of:

  • Writers
  • Artists
  • Designers
  • Dramatists
  • Musicians
  • Architects and
  • Producers of sound recordings, cinematograph films and computer software

Copyrights is a bundle of rights including, inter alia, rights of reproduction, communication to the public, adaptation and translation of the work. The article focuses on small issue of Indian law on copyrights for computer software.

A. Computer Software

Software is a generic term for organized collections of computer data and instructions, categorized into:

(a) System software that provides the basic non-task-specific functions of the computer, and

(b) Application software, which is used by users to accomplish specific tasks.

The computer software or programme can also be registered as a ‘literary work’ under the Act. As per Section 2 (o) of the Copyright Act, 1957 “literary work” includes computer programmes, tables and compilations, including computer databases. The Computer software can also be protected by way of filing a patent application.

Section 2(ffc) of the Act defines ‘Computer program’ as a set of instructions expressed in words, codes, and schemes or in any other form, including a machine-readable medium, capable of causing a computer to perform a particular task or achieve a particular result. Hence, software program can certainly be protected under Copyright law.

The computer software can be categorized into two categories-

(a) Proprietary Software: Owned by an individual or a company

(b) FLOSS (Free/Libre/Open Source Software): Free software means the software for use any where on any number of computers and in any technical situations. Fixing the bug can augment such software, augmenting its functionality and studying its operations. Redistribution can be done at cost or at charge even.

When a customer purchases a pre- installed software from a PC provider (let’s say from an authorized distributor) then that Operating System package license is called as Original Equipment Manufacturer (OEM) license. The OEM license is specific to a particular machine on which the PC provider installs it. Therefore, this type of licensed version of software cannot be installed on other machine by a third person.

Various Parts of Computer Software and their Protection in IPR:

S.No. VARIOUS PARTS OF COMPUTER SOFTWARE CLASS OF PROTECTION OF IPR
1. Source code and Object code Copyright (literary work)
2. Operating System: allows application software to interact with the hardware. Software code can be protected under Copyrights
3. Application Software Copyright

B. Law Points on Jurisdiction

It is clear that copyright exist for a computer programme however, it is important to understand that the concept of Jurisdiction of court[1] in case of any violation. As per the Act, every suit or other civil proceeding in respect of the infringement of copyright in any work or the infringement of any other right conferred by this Act shall be instituted in the district court having jurisdiction. A “district court having jurisdiction” shall, notwithstanding anything contained in the Code of Civil Procedure, 1908, or any other law for the time being in force, include a district court within the local limits of whose jurisdiction, at the time of the institution of the suit or other proceeding, the person instituting the suit or other proceeding or, where there are more than one such persons, any of them actually and voluntarily resides or carries on business or personally works for gain.

C. Period for granting Copyright Protection

Copyright protection extends for author’s lifetime plus 60 years from the beginning of next first calendar year in which the author dies. If it’s a joint work then the protection is extended from the author who dies last even in case of computer programme.

D. Patent of Computer Software

The Indian Patent Act allows a new product or process involving an inventive step and capable of industrial application to be patentable, it also provides a list of subject matter that cannot be patented. Section 3(k) specifically states that “computer program per se” is not a patentable subject matter. The software innovations are considered patentable. A software invention once patented will be valid for 20 years.


Conclusion

The following are permissible actions for computer software is allowed:

  • A backup copy for personal use will be considered as fair use.
  • Making copies or adaptation of the computer programme from a personally and legally obtained copy for non-commercial personal use.
  • A single license on a single device is considered as fair use.
  • Installation of licensed software meant for a single machine but used on two different personal machines may not be considered fair.
  • Downloading genuine Software from authorized link
  • Decompiling software to fix an issue is considered fair

[1] Section 62 in the Copyright Act, 1957