Tag: Law Student

INTRODUCTION

Intellectual Property (IP) is a kind of invention by a living being in form of literature, artistic, designs, symbols, names, and images in trading.

Intellectual Property Rights (IPR) are granted to the owner of Intellectual Property. These rights protect the property’s misuse by someone other than the owner. Having intellectual property has become common in the modern world. Protection of Intellectual property enhances the publication and its distribution. It helps in boosting economic growth.

To distinguish IP from other forms of property is its intangibility. IP can be owned and owners have the right to protect the property. When you are given rights to protect the property you are also given duties to be fulfilled. As we all know there are various kinds of IP that leads to different kinds of rights and duties in society so that all IPs can exist together. Any IP once sold by its first owner to the other then the first owner’s claim to the property is completed. With new technologies around the world, the new items are making it up to the IP. Facilitating fair trading and competition in the market.

Bajaj Auto Ltd v TVS Motor Company Limited¹ this case has been pending before the court for 2 years leading to losses to parties due to which Supreme Court ordered that cases must be resolved within four months of filling any such related suit.

Yahoo Inc. v. Akash Arora² this case was about the IPR on the internet, in the instant, the domain name of the defendant’s website was identical to that of the plaintiff due to which people can easily get confused. The general public may believe that both the name must have some sort of connection. The court observing the importance of domain name ordered the defendant to stop the usage of an identical name as it is essential for the company’s advantage.

SUI GENERIS

The term ‘Sui Generiss’ is derived from Latin meaning its own kind and in layman’s terms unique. In legal it means a control-free legal classification. Provides a set of laws to protect Intellectual Property Rights, allowing the provider of the invention must be protected and compensated for the contribution made to society. It can also be a law that provides protection to copyright, patents, trademarks, geographical indications etc.

The policy laid down by the Indian government in 2016 aimed at making citizens aware of intellectual property. To promote modernization, acceleration of commercialization, expansion of institutions specialized in IP and development of human skills.

Intellectual property can be classified as—

COPYRIGHT:- The property in tangible form in terms of literature, artistic, poems, novels, songs, and computer codes. The copyright gives one authority over the work and the owner is capable of deriving economic benefits like commercializing the use of work and receiving respect for his/her work. Copyrights are based on the creativity and originality of work. In India, the copyright is governed under Copyright Act,1957.

PATENT:- It is an exclusive right that is granted to the owner of the invention. Invention means a new way of making use of something, the machine-made for some purpose. In India, the patent is governed under Indian Patent Act,1970 providing the owner of the patent to make use, sell, controlling the patented subject. It must be registered for getting the sanction of license. A patent can be given up by the owner of the patent by surrendering.

TRADE MARK:- It helps us in the differentiation of one product from other products that have the same class. It helps one product stands out from other products. Giving protection to any symbol, phrase, design, or icon helps in the recognition of the product. It is protected under the Trademark Act, 1999 objective of protecting trademarks from misuse of trademark, expanding the usage of trademarks and reputation of a firm’s trademarks.

GEOGRAPHICAL INDICATION:- Name and sign of product based on its geographical location. The indication leads to the defining quality and process for the manufacturing of the product. Geographical indications are governed under the Geographical Indication of Goods Act,1999  in India. It aims at providing protection to the protection considering the interest of the owner. The product that is based on geographical location may be a natural hood, agricultural good or ingredients used in a product taken from that geographical location.

INDUSTRIAL DESIGN:- It aims at protecting visual design created with dimensional or two-dimensional figures or shapes, coloured, lined, textured, and material used.

PLANT VARIETY:- There must be a diversity of plants distinct in nature, offering material used for selling, and providing material for imports and exports.

TRADE SECRETS

Trade Secret is a kind of intellectual property that includes the process of working, formulas to programs, the pattern of work or confidential information that is financially valuable, only a limited number of people are familiar and viable steps must be taken to keep the concerned information a secret. Some examples of trade secrets include Coca-Cola Drink, KFC, McDonald’s etc.

The law based on intellectual property rights forbids others to disclose a trade secret to anyone who is not part of a firm or project or not allowed to know. Trade secrets can be technical in nature including formulas, codes for programming, commercially including advertising, and processes of making.

ORIGIN

The year 1977 saw the rise of Trade Secret in India when the government orders Coke to surrender the formula for Coke due to which Coke pulled out of the Indian market and re-enter the Indian market when the central government changed. India was part of the General Agreement on Tariffs and Trade (GATT) in 1984 as the concept of intellectual property was based on immediate disclosure, publication, and registering the innovation whereas trade secrets are meant to be kept secrets as the term suggests, therefore, India refused to include trade secrets.

In 1991 the liberalisation policy was introduced aiming at private and foreign investment. India was part of the Uruguay Round that leads to the introduction of intellectual property rules into multilateral trade and the treaty was called as Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) in 1994. Consequently, India became a member of the World Trade Organization (WTO) in the year 1995. As per the agreement, it makes it an obligation towards members of the organisation to protect ‘Trade Secret’. Later, India enacted laws to comply with the terms of the agreement.

With the passage of time, the issue became important and the need for the new law was felt, therefore, the Indian government introduced the National Innovation Bill 2008 aimed at providing a boost to innovations done either privately or publically and codification of set of laws for maintaining trade secrets. Soon, the bill disappeared in thin air. India ignored the subject till 2016 when ministerial-level meetings were held between the U.S.A. and India leading to the mention of the term ‘Trade Secrets’ in the National Intellectual Property Policy.

PROTECTION

The one who owned trade secrets must be responsible for keeping them confidential by both technical and legal measures. The owner must know the importance of trade secrets, and access to such codes, formulas, and data must be protected by stronger security.

Trade Secrets became more prone to the risk of getting misappropriated when a former trustable employee leave and was suspected of using economically valuable information for its own benefit. For the protection of the trade secrets of a company, there must be stronger laws that include the agreement of secrecy and for breach of confidence etc.

The agreement of secrecy was not considered to hold back the practice of trade³. There is always an agreement of confidentiality between employer and employee⁴.

In the instant case of John Richard Brady v Chemical Process Equipment Pvt. Ltd.⁵ the usage of the same information that is provided by the plaintiff to the defendant under the clause of confidentiality was used for the defendant’s benefit hence the confidentiality clause was breached leads to the liability of the defendant.

When secrets are shared among competitors then the competition would be unfair hence, a company that is unable to meet the satisfaction of consumers leads to a lack of promotion of new innovations. Secrets can be kept for a longer time without a bar of certain years will be applicable immediately or at the stated time.

INTERNATIONAL TREATIES

Paris Convention on Protection of Industrial Property,1883: The first treaty in favour of Intellectual Property Rights having 30 articles revised in 1967 aiming at equal treatment to IP of other member nations same to that of its own citizens, the owner may seek protection from more than one country and all countries must have some common rules regarding IPR.

Berne Convention for Protection of Literary and Artistic Work,1886: The original should be given protection instantly from the time stated an equal treatment must be given to all such works. The protection must be given to work in other member countries as well.

Universal Copyright Convention,1952: The treaty aims at national equal treatment for all IP minimum safeguards.

World Intellectual Property Organization,1967: With the objective of providing people with state cooperation towards international applications for intellectual property, technical assistance for issuance of the certification of  IP.

Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS),1994 recognises the international intellectual property dispute resolution and protection mechanism.

WIPO Copyright Treaty,1996 promotes the protection of computer programs, and data stored.

CONCLUSION

Even after so many laws to protect Intellectual Property the owner still suffers the loss by bearing the high legal cost of certification and other losses. Laws are just imposed so one might know the consequence of their action but someone will follow the laws that aren’t necessary so the owners of intellectual property still face many problems. Sometimes, people may use your work as their own without your knowledge and consent, but by the time you cane to know the value of the product diminishes.

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CITATIONS

1 2009 (12) SC 103

2 1999 (19) PTC (Del)

3 1967 AIR 1098

4 130 (2006) PTC 609 Del

5 AIR 1987 Delhi 372

This article is written by Simran Gulia of Maharaja Agrasen Institute of Management Studies.                                                                           

INTRODUCTION

‘Freedom of Press’ finds its origin in Article 19 of the Indian Constitution. It is derived from the freedom of speech and expression mentioned in the same article. ‘Freedom of Press’ is literally for the people who are responsible for providing information around the globe to citizens without any discrepancy. All institutions that are responsible for gathering and transferring news to the general public comes under the definition of the press. A free press plays a vital role in a democratic country like India and helps in sharing ideas, opinions, and comments, about the issues that involve the interest of the general public.

HISTORY

The invention of new technology of printing media enhanced the opportunities for people to know the happenings around them and in Raja Ram Mohan Roy’s words “looking for truth through the light of discussion”. In India the first newspaper was founded in 1780, Hickey’s Bengal Gazette, thereafter in 1822 India’s first Persian newspaper was published—Mirat-Ul-Akbar. The newspaper was written in Persian as it was known in courts of law and can reach the policymakers of the country.

In India, at the time of British rule, censorship of the newspaper was introduced.

Licensing Regulation, 1823 requires a license for the press. 

Licensing Act, 1857 imposed many restrictions on the publication of any printed material.

Vernacular Press Act 1878 was enacted to prevent press freedom so that policies framed by Britishers do not face public criticism.

Indian Press Act, of 1910 was framed to censor all kinds of print media.

FREEDOM OF PRESS

There is no separate article that provides for freedom to press separately. It is covered under Article 19 of the Indian constitution stating the right to speech and expression. Under this article, people are free to express their opinions, suggestions, and ideas regarding the issues of general importance obviously subjected to certain restrictions.

It was believed that freedom of the press is a mere exercise of freedom of speech and expression by the editor of a newspaper or magazine therefore, no special mention of freedom of the press is required.

Indian Express Newspaper  v. Union of India ^[1]  it was held that the mention of the term ‘freedom’ in the article means free from the interference of any government authority in the circulation of the newspaper. The purpose of the press is to provide information to the general public based on facts and create opinions in minds of the general public so that they can take part in decision-making.

In Ajai Goswami v. Union of India ^[2], a petition was made before the court to Request the issue of guidelines by the government regarding the publishing of sexually exploiting material in newspapers whether obscene or not. The court rejected the petition on the ground that the content published must be based on the nature of an ordinary man, not on a hypersensitive or ordinary person for that matter. Ban can’t be done solely based on the sensitivity of someone.

The imposition of censorship prior to its publication can’t be done as held in Brij Bhushan v. State of Delhi ^[3]. Prohibition on the publication of views and opinions in newspapers violates the right to speech and expression.

The government of Madras exercising its power under Section 9 1-A of the Maintenance of Public Order, 1949 issued an order prohibiting the circulation of journals in that state. The state’s action was challenged in Romesh Thapper v. State of Madras ^[4] court held that freedom of speech and expression comes with the freedom to propagate ideas and banning a circulation is necessary to ensure the liberty of sharing ideas.

In 1962 government passed a Newsprint Control Order that fixed the maximum number of pages that could be published was challenged in Bennet Coleman and Co. V. Union of India ^[5] claimed that it violated Article 14 and Article 19 of the Indian constitution. Court held that freedom of the press is both qualitative circulation and quantitative- content. Increasing the circulation by reducing the content is not justified.

The press has the right to criticize government actions but cannot persuade the general public against the government which could lead to riots. In the case of Sahara India Real Estate Corporation LTD v. SEBI ^[6]  was held that it was the right of the media to report the proceedings of the case and must submit faithful reports. Article 361 of the Indian constitution provides for the publishing of reports of parliamentary proceedings.

Indian Press ranked 150^th out of 180 member countries of the World Freedom Press Index in the year 2022. The data is taken for ensuring the level of freedom the press enjoys. The violence that happens against the press should be the main concern of the Indian government. It was also claimed that the media is dominated by powerful leaders around the country. All these claims got justified as last year’s rank of 142 falls to 150.

IMPORTANCE

The press helps in the exchange of ideas around the world. It helps in enlightening people about the events which happen but are just ignored as a minimal thing. It creates awareness among people and allows the general public to voice their opinions and suggestions. It’s like a pillar of democracy that works alongside the organs of the government. If anyone or any public body violates the right of the general public by being in an upper position, the press can help by acting as a medium that protects poor people from the hands of corrupt officials.

As per the data, India is one of the largest markets for newspapers over 240 million copies are produced each day. It gives a gist of citizens about political, social, and economic development in the country and the outside world.  

Indian media was criticized for its control by popular and powerful people. In 2015, when Nepal face nature’s wrath INS the form of an earthquake that decimated parts of the country, a slogan was raised ‘Go Home Indian Media’ despite the Indian government’s help to victims of the earthquake. Delhi CM Arvind Kejriwal advised having a public trial for Indian media. Arun Jaitley, the late cabinet member stated that despite there being thousands of channels, there was still an inadequacy of facts.

NEED FOR EXTERNAL REGULATIONS

At present date, Freedom of Press is governed by the Press Council Act,1978. This act provides for the creation of a body that consists of 28 members that have the power to censure the content written by journalists, ensure their independence, fostering a sense of responsibility among citizens. However, the Press Council of India seems to lack the authority to penalize the violators, it is just like while writing news one should keep a check pf these guidelines but if not followed you can’t take any action against them.

The press has surely gained popularity with the advancement of technology. But still, the press often overlooks the thin line of difference between authenticity and inaccuracy of facts. This only results in the downfall of the media. Freedom without restriction leads to inaccuracy, credibility, of situation. Restrictions such as

To reduce the problem of inaccuracy— there is felt a need for external regulations.

1. The acts passed regarding press laws must keep a check for powers of the press must not be misused.
2. The press must not take advantage of influencing people.
3. In the corporate world authenticity of news cannot be trusted.
4. Review the material before publication.
5. Paid news has resulted in no or less independence among the press.
6. The hunger for Television Rating Points (TRPs) results in only covering more of less important topics.

MEDIA TRIAL

Media trial is facts of the case designed by the press and presented to the general public to seek their opinions on the said matter. It is not prohibited in India, it influences the views of people on the case. In Jessica Lal’s murder case a female bartender refused to serve liquor as the bar was closed but she was shot dead in New Delhi. Many people have suspected this case went through a media trial.

The recent case of the death of famous actor Sushant Singh Rajput in his apartment was tried by the media whereas the High Court of Bombay held that a trial by media influences the media leads to delay in justice.

This may lead to criminal contempt of court by any resource that may reduce the power of courts over the matter and may interfere in proceedings.

CONCLUSION

Though Freedom of Press is not literally mentioned in the Indian Constitution its traces can be found. We are free to share our ideas, opinions, and suggestions, with each other. But every right comes with responsibility, protecting sovereignty and integrity of the state, must not say, write anything that may trigger violence in society, must not act indecently, or do something that may harm the relationship between India and foreign countries. Anything without restriction could cause chaos in society. Freedom to Press must be given but the government must keep a check on the freedom given so that press may not oversteps its boundary.

CITATION:

1. 1986 AIR 515
2. AIR 2007 SC 493
3. AIR 1950 SC 129
4. AIR 1950 SC 124
5. AIR 1973 SC 106
6. (2013) 1 SCC 1

This article is written by Simran Gulia a BA LLB student from Maharaja Agrasen Institute of Management Studies.