Cover songs on YouTube: Where legality meets lyrical creativity (and copyright claims meet ear-bleeding renditions)

A cover version is the performance of a song that already exists, has been previously recorded, or has been commercially published by someone other than the original performer. This new recording is referred to as a cover version. The cover version has also been defined as a sound recording in relation to any abstract, sensational, or melodic work, when the sound recordings of that work have been recorded by or with the consent or agreement of the owner of the right in the work under Section 31 C of the Indian Copyright Act. With the advancement of new technology, it has become more easier for individuals to create and post cover versions online.

Before Section 31C, song covers were made under Section 52(1)(j) of the Copyright Act, which was a “fair dealing” provision that supplied the defendants with a defense that the cover version they made was fair and non-encroaching because it agreed to the pre-conditions set out in Section 52(1)(j). These recordings were known as “version recordings” throughout the business, and the term was used by the Delhi High Court in a few rulings in lawsuits. Aside from its casual use, the term “version recording” does not appear in the new Act. Section 31C has omitted and brought back as a Statutory License provision with certain amendments; thus preserving to a large extent.

Since the time of Bards this field has been profitable market, various producers for version recordings have emerged, as the statutorily recommended order under previous Section 52(1)(j) required them to send only notice and pay the agreed upon royalty to the writers of original works when a sound recording of the same original work was simply allowed to exist in open space. Which is why today you can enjoy ‘Sanam’ make a medley of your favorite 90’s songs.

The mechanical license on YouTube only covers the audio element of your YouTube cover. Synchronization license, sometimes known as a “sync” license, is required to publish video alongside the song. A sync license must be negotiated with the copyright holder. While copyright holders are required to grant mechanical licenses, they are not required to grant you a sync license, and there is no set fee for the license. The good news is that many music publishers have already entered into deals with YouTube that enable their songs to be utilized in exchange for a percentage of the ad money produced on YouTube. By contacting the music publisher directly, you may find out if there is already an agreement in place for the song you wish to utilize.

In general, novice producers make recordings of cover versions in order to obtain recognition; nevertheless, the majority of these recordings are broadcast without the permission of the original author of the work, which may land these new talents in copyright infringement proceedings. The repercussions of uploading a cover song without a music license are determined by the owner of the copyright. Some copyright holders don’t mind YouTube covers since they improve a song’s visibility and may introduce composers or original performers’ music to a new audience. One of the best ways to ensure that your video does not get flagged for copyright infringement is to put a disclaimer in the description making your intentions with the video extremely clear and crediting the original creator. This may look like “I hereby declare that I do not own the rights to this music/song. All rights belong to the owner _____________. No Copyright Infringement Intended. ”

WRITTEN BY–
SHARANYA CHOWDHURY

2ND YEAR, BALLB

RML NLU, LUCKNOW

Counterfeiting Vs Trademark Infringement

Counterfeiting and Trademark infringement is often confused with being one and the same. While both counterfeiting and Infringement of trademarks are related to each other they are not identical. It can be said that: “All counterfeiting of marks is trademark infringement however not all infringement of trademarks is counterfeiting.” Counterfeiting is a narrower concept under trademark infringement.

Both Infringement and counterfeiting are problems that can hamper the economy. They jeopardize the competitive position of companies in the global hemisphere. Companies that engage in counterfeiting and infringement of the Trademarks of others gain huge profits by negatively affecting the business of other companies who are honestly creating their goodwill and reputation. Counterfeit products also pose a threat to consumer health since they are made without proper supervision and don’t follow compliance. A good understanding of Counterfeiting and Infringement and their differences can help us in combat the spread of these goods.

What is Counterfeiting in the context of IPR

The Indian Trademark Act, 1999 doesn’t define counterfeit therefore we look towards the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement and legal dictionaries for counterfeiting definition.

The Trade-Related Aspects of Intellectual Property Rights (TRIPS) defines counterfeiting as:

“Counterfeit trademark goods” shall mean any goods, including packaging, bearing without authorization a trademark which is identical to the trademark validly registered in respect of such goods, or which cannot be distinguished in its essential aspects from such a trademark, and which thereby infringes the rights of the owner of the trademark in question under the law of the country of importation;

Webster’s New world law dictionary defines counterfeiting as:

To copy or imitate something without the right to do so and with the intent to deceive or defraud by representing the copy or imitation to be the original or to be genuine if no original ever existed.

The common elements that can be derived from these definitions are that Counterfeiting is the creation of an identical good in order to deceive or defraud the purchaser of the good.

What Is Infringement Under the Indian Trademark Act?

Section 29 of the Indian Trademark Act,1999 defines Infringement of the Trademark. According to this section, “A registered trademark is infringed by a person who, not being a registered proprietor or a person using by way of permitted use, uses in the course of trade, a mark which is identical with, or deceptively similar to, the trade mark in relation to goods or services in respect of which the trade mark is registered and, in such manner, as to render the use of the mark likely to be taken as being used as a trade mark.”

Violating the exclusive rights of the registered owner of trademarks without their permission is called Trademark Infringement. There are many ways of infringing an owner’s trademark which include, creating a mark similar or identical to the registered mark to create confusion in the minds of the general public of its association, or using the registered trademark’s name or part of it in the infringing mark in the same goods and service, etc. These methods of identifying trademark infringement are also listed in Section 29 of the Trademark Act,1999.

Difference Between Counterfeit Marks and Infringing Marks

A counterfeit mark is indistinguishable from the original or genuine mark. Infringing marks are considered confusingly similar to the genuine mark or original mark. This means that infringing marks might either be exactly identical to the genuine mark or it might be a mark that is being used in such a way that leads to confusion, deception or misunderstanding about the actual source of the Trademark. Counterfeiting also includes copying the packaging, instructions, stickers, etc of the original product. Counterfeit Products are very difficult to distinguish from the original products because even the essential features of the goods are copied to be exactly the same.

The remedies available for counterfeiting and trademark infringement also vary. Counterfeiting of a mark is punishable under the Indian Penal Code and is a cognizable offense. In the case of the Infringement of a Trademark, civil remedies in the form of injunction and damages can be sought by the registered owner.

The mere existence of counterfeit products is proof enough to bring legal action against the defendant. While in Infringement the plaintiff is required to prove that any other mark is deceptively similar to their mark to the extent that they can create confusion in the mind of the average person and that the defendant is not a registered owner of the mark and neither has permission from the registered owner to use the mark. Hence, the burden of proof is much more strict in cases of counterfeiting.

BY-

SHAKSHI SWARNKAR

2 YEAR LLB

ILS LAW COLLEGE, PUNE

FACTORS IMPACTING THE VALUATION OF IP ASSETS

Introduction

As people all across the globe become more aware of their intellectual rights and their ability to claim ownership of their creations, debates revolving around the valuation of such intellectual property are gaining traction. Intellectual property is a class of incorporeal property that is identified on the financial statements of corporations that own such intellectual properties.

It is important to distinguish between the “price” of an intellectual property asset and the “value” of an intellectual property asset. While price is the monetary value at which the asset trades in the market or the amount that a willing purchaser is ready to shell out. Value, on the other hand, represents the potential future economic benefits that the asset is likely to produce.

Valuation – though may seem deceptively lucid, the practical nuances and factors that are concomitant with executing valuations make it a complex exercise. Throw in the concept of intellectual property in the mix, it makes the process even more tedious. What makes the valuation of intellectual property assets complex is the fact that it involves a lot of inputs that are based on assumptions and projections. Furthermore, uncertainties around business projections, economic outlook, government policies, and technological disruptions dilute the accuracy of the value of intellectual assets.

FACTORS THAT INFLUENCE THE VALUATION OF IP ASSETS

As noted above, the valuation of an intellectual property asset of an enterprise is a gross product and amalgamation of a lot of factors, and thus, such factors should be kept in mind when intellectual property is valued.

Valuation Purpose: The purpose or the context for valuing or the benefits that will be accrued by an intellectual property asset indelibly impacts the valuation of the incorporeal property. Thus, factors such as access to technology or cost savings will impact the value.
Time: The considerable time reference when the intellectual property Is being valued is to be considered. An intellectual property affords an exclusive right to the owner or the licensee of the asset to exploit it for a limited time frame. For instance, a patent affords protection for a period of 20 years before it becomes available in the public domain. Valuation of the asset at different points in time will produce a different outcome. How the asset fit in its own product life cycle and the life cycle of the entity should also be considered.
Legal Status: The legal status of the asset owned by a firm will impact its valuation. Thus, whether an intellectual property asset owned by an enterprise is registered or unregistered will lead to different valuation results.
Individual or a Bundle Asset: Another factor that shall have an impact on the intellectual property owned by an enterprise is its status. Whether the asset is a stand-alone asset or part of a bundle of assets, inseparable from the bundle should also be paid attention to.
External variables: Factors such as the number of competitors in the market, barriers to entry into the market, legal policy framework, technological disruptions, and the degree of consumer preferences shall have an impact on the value of the incorporeal asset.
Geographical Protection and Jurisprudence: Whether the asset has been afforded protection limited to a particular jurisdiction or it enjoys protection in multiple nation-states will impact the value of the asset. For instance, a well-known mark that has its presence and is protected in multiple countries will be valued significantly higher than an asset that is only protected in a certain jurisdiction.
Miscellaneous Factors: Other factors such as tax implications, the industry in which the company operates, governmental supervision, investments, and the capital structure are some of the other attributes which can impact the value of the asset.

PURPOSES OF INTELLECTUAL PROPERTY VALUATION

Intellectual Property, an intangible or incorporeal asset is recognized as a legitimate asset on its financial statements by a company. Therefore, assets such as the company’s goodwill, its trademark, or any inventions which have received a patent registration must necessarily be valued. Secondly, if a company wishes to purchase or sell or license out an intellectual property, then a value must be ascribed to the asset in question. Furthermore, when two or more enterprises wish to merge or amalgamate, the intellectual assets of both entities need to be valued. What makes the valuation of Intellectual property more complex in this case is that valuation is to be considered in accordance with that of other tangible assets. Other areas for which IP assets are valued can be for the financing of a project or for securing a loan from a bank, ensuring the intellectual assets, efficaciously managing the overall asset portfolio, and ascertaining the tax implications for the company.

Intellectual Assets are valued from different perspectives based on the underlying cause for which they are being valued. For instance, International Accounting Standards now recognize and require intellectual assets to be valued at their cost in the initial stages. In the later or subsequent years, the asset is required to be valued at cost after any amortization and impairment charges. If an intellectual asset is acquired as part of an acquisition or a business combination, the asset’s cost is defined as its fair value at the acquisition date.

CONCLUSION

Intellectual Property and its valuation are, as evident from the Korero above, a complex exercise and warrants considering a plethora of factors. Thus, it is not uncommon to see that companies usually hire the services of a certified financial valuer. The company owning an intellectual asset may use different methods – depending on the stage in the life-cycle of the intellectual product, whether the asset is a stand-alone or a bundle of rights, and whether its acquiring value is to be gauged or the future economic benefits that can be expected from it are to be ascertained. In the former case, the company is more likely to use the cost approach, while in the latter case the company, to consider the future stream of cash flows, is likely to utilize the income method.

Intellectual assets bring with them a series of complexities and thus, a streamlined approach to ensure that such assets are valued efficaciously is required. In furtherance, the assumptions and projections must be incorporated in valuation models such that they consider all the factors and their impact on the value of intellectual assets.

BY-

RAGHAV GROVER

2ND YEAR LLB

ILS LAW COLLEGE

Social Media Influencers and Modern Advertisements in India

Social media influencers are the new age internet ‘celebrities’ who use social media platforms to rise to fame. These influencers create reels, blogs, videos, pictures, and more to gain followers and build connections with their audiences. Brands bank on the popularity of influencers to promote their products and services through influencer marketing.

Unlike, traditional advertisements, influencer marketing doesn’t appear at the first glance to be an advertisement. They might be mistaken by consumers as being the influencer’s personal recommendation instead of a commercial partnership. This also promotes false advertisement as influencers are seen endorsing products that they have never used and making false claims regarding them.

Regulation On Social Media Advertisements by

Influencers:

ASCI Guidelines

In India, the Advertising Standards Council of India (ASCI) is the self-regulatory body that sets guidelines for advertising across various mediums, including social media. The Guidelines for Influencer Advertising in Digital Media were released on June 14, 2021. These guidelines apply to all advertisers, including influencers, and aim to ensure that all advertising is truthful, honest, and not misleading.

Some of the key rules and guidelines for social media advertising by influencers in India are:

Disclosure of sponsored content: Influencers must clearly disclose any sponsored or paid content by using appropriate hashtags such as #ad, #sponsored, or #paidpartnership. The disclosure should be made upfront and prominently, and should not be buried within the post.
Truthful and honest advertising: Influencers must ensure that their advertising content is truthful and not misleading. They must not make false or exaggerated claims about a product or service or misrepresent its benefits or effectiveness.
Adherence to ASCI code: Influencers must adhere to the ASCI code for advertising, which includes guidelines on various aspects of advertising such as claims, comparisons, endorsements, and more.
Age-restricted products: Influencers must not promote age-restricted products such as alcohol or tobacco to minors.
Responsibility for content: Influencers are responsible for the content they post, and must ensure that it complies with all applicable laws and regulations, as well as community guidelines of the social media platform.

In addition to these guidelines, influencers must also comply with any specific guidelines or rules set by the social media platform they are using. For example, Instagram requires influencers to clearly disclose any sponsored content using its branded content tools. It is important for influencers to be aware of these rules and guidelines and ensure that their social media advertising practices are compliant with them. Failure to do so can result in legal action, fines, and damage to their reputation.

Consumer Protection Act, 2019

The Consumer Protection Act, of 2019 addresses the evolving market scenario in the country. It provides consumers with enhanced protection and transparency in influencer marketing. The Act mandates that influencers disclose any material connections or commercial relations that they have with brands that they are promoting. This includes any payments, gifts, or other incentives they have received in exchange for promotion.

The act also prohibits misleading advertisements, which means that influencers must ensure that the claims that they make about the products or services they are promoting are truthful and not exaggerated. If an influencer makes false or misleading claims, they can be held liable for any harm caused to consumers.

Misleading Advertisements are defined in Section 2 (28) of the Act as an advertisement which

falsely describes such product or service; or
- gives a false guarantee to, or is likely to mislead the consumers as to the nature, substance, quantity or quality of such product or service; or
- conveys an express or implied representation which, if made by the manufacturer or seller or service provider thereof, would constitute an unfair trade practice; or
- deliberately conceals important information;

The act also provides consumers with the right to file complaints against any misleading or fraudulent advertisements. In case of any violation, the influencers can face penalties such as fines and even imprisonment. The punishment for the misleading advertisement includes imprisonment up to a period of 2 years with a fine that may extend up to ten lakh rupees. This Punishment is stated in section 89 of the Act. Section 21 of the act gives Central Authority the power to remove any false advertisement.

What the Judiciary Says:

Marico Limited v Abhijit Bhansali [1]

The Bombay High Court, in its decision, had also identified “social media influencers” as a nascent category of individuals who have acquired a considerable follower base on social media and a certain degree of credibility in their space. The decision also noted the need to impose certain responsibilities on such influencers keeping in mind the power they wield over their audience and the trust placed in them by the public.

Aditya Kumar Jha v. UOI [2]the High Court of Allahabad held that the role of the ASCI is to ensure that advertisements are truthful and honest. Further, the test to determine if an advertisement is truthful and honest is the impact it has on a consumer and whether it is likely to mislead them.

Conclusion

According to some reports, half of the Indian population uses social media and this number is expected to keep growing. With the advent of digital media, influencer advertisement has become the new norm of advertisement. The Indian legislators have also taken notice of this and have accordingly come up with guidelines and statutes to stop misleading or false advertisements by influencers. The ASCI guidelines are being strictly applied to influencer and their posts with mechanisms for detecting violations set up in place.

BY-

SHAKSHI SWARNKAR

2ND YEAR LLB

ILS LAW COLLEGE, PUNE

[1] 2020 SCC OnLine Bom 265

[2] 2017 SCC OnLine All 3922

Unlocking the Voice Actor’s Rights in Indian Copyright Law

The Voice actor plays a very crucial role in Films and Advertisements in the Indian film industry. They engage the audience or customers with their talented voice acting and help in creating an authentic connection with the audience. Voices of voice artists are used and re-used to establish harmony with the visuals on screen. After the 2012 Amendment to The Copyright Act, 1957 (‘The Act’), many rights such as moral rights, equal share of royalty, etc. were provided to the Indian Performer. However, Indian voice actors still do not receive credit for their work and have to depend on the mercy of movie producers for royalties. In this article, we try to facilitate a legal discourse on the rights of the voice actor community.

Are Voice Actor Performers?

Performers are defined in section 2 (q) of the Copyright rules as: “performance”, in relation to the performer’s right, means any visual or acoustic presentation made live by one or more performers;

Section 2 (qq) defines a performer as “performer” includes an actor, singer, musician, dancer, acrobat, juggler, conjurer, snake charmer, a person delivering a lecture or any other person who makes a performance;

Someone who performs casually or incidentally in the normal course of the practice of the industry with respect to cinematograph films is an exception to this definition of a performer.

A voice actor can be considered a performer if they give a live visual or an acoustic presentation. In the case of Neha Bhasin v. Anand Raj Anand, it was held that live presentations in a studio also constitute a performance. The presence of an audience is not mandatory. Hence, an individual who does voice acting inside a studio is also a performer.

If a voice actor creates an original work, such as a character voice, narration, or singing performance, they may hold a copyright in that work. This means that they have the exclusive right to reproduce, distribute, and perform the work, and can license or assign those rights to others for a fee or royalty.

In cases where a voice actor is hired by a company to perform a specific role, the copyright in the recording may belong to the company, unless there is an agreement stating otherwise. However, the voice actor may still have rights in their performance, such as the right to be credited as the performer and the right to prevent the recording from being altered or used in a way that is detrimental to their reputation

Voice Actors That Are Not Performers

In movies, certain junior voice actors may be required to make crowd noises. Because there is no skill required in making these crowd noises and they don’t have a distinctive characteristic, such performances will not be considered performances under Section 2(qq).

Rights Of Voice Actors Under Copyright Rules 1957

Section 38 of the Copyright Rules 1957 deals with the Performer’s rights. According to this, section a performer has a special right known as “performer’s right” in relation to their performance. This right shall subsist until 50 years from the beginning of the year in which the performance was made.

Under Section 38A, if the performance is incorporated in a cinematograph film by a written agreement, the producer cannot dent an equitable share in the commercial use of the performance. The commercial use of the performance includes reproduction, issue of copies or distribution, communication to the public including broadcasting and commercial rental of a cinematograph film.

The provisions on assignments, licenses and copyright society apply with necessary modifications and adaptations to the performer’s right, as stated in section 39A(1) of the Act.

Problems That Voice Actors face in India

While voice actors are legally recognised as performers under the Indian copyright law, they don’t enjoy the rights given to performers.

Performer’s society- There is currently no joint Performer’s society that represents voice actors all over India. A single all-India Performer’s society for voice actors will help in streamlining the collection and distribution of funds, and can stop the unauthorised use of voice actors’ work. Such a society can also take up matters on behalf of its members in a court of law.
Royalties – The share of royalties that voice actors receive for their work is not uniform. Hence, voice actor has to determine their worth on their own. This leads to voice actors getting significantly underpaid.
Unauthorized Use – Unauthorized commercial use by producers also exploits a voice actor’s hard work.
Recognition- There is no national award for voice actors and their contributions. Not only this sometimes voice actors are not even mentioned in the credits of their work.

Conclusion

The Indian entertainment and media industry is the 14^th largest industry in the world. The Voice-over artists and voice actors have contributed majorly to the success of the industry. However, their contributions are not often recognised on par with other performers. It is now high time that voice-over artists are treated as performers under the copyright act and given the same rights that other performers enjoy.

BY-

SHAKSHI SWARNKAR

2ND YEAR LLB

ILS LAW COLLEGE, PUNE

TRADEMARK: BULLYING IN THE NAME OF PROTECTION

TRADEMARKS

Trademark protection is given to protect and safeguard the marks which are exclusively used by a particular entity to sell its goods or services under its name. These marks help the entities in differentiating their goods and services from that of others. But unfortunately, some powerful entities have gone beyond their legal rights of defending their marks and bullying the weaker entities.

TRADEMARK BULLYING

We say that trademark bullying has happened when a bigger entity that is generally registered under the Trademarks Act, 1999 threatens or tries to threaten the other entities which may be smaller in comparison, and generally unregistered by sending them to cease and desist notice on unreasonable grounds. The bigger entities in such a case try to threaten the smaller entities by creating a fear of suing the smaller entities in claims of infringement of the trademarks of the bigger entities.

Most of the time the companies which are involved in trademark bullying are large companies that have well-known marks registered and are not bothered about huge money getting spent on litigations. These large companies are aware of the fact that the smaller companies neither have sufficient resources nor are economically well off, which restrains them from pursuing against the bigger companies. The smaller entities even though may have a legitimate case in most of the cases tries to avoid the legal hassles as they are overpowered by large entities in terms of resources and money.

TRADEMARK BULLYING IN INDIA

In India trademarks are protected by the Trademark Act, 1999, and we are lucky enough to have provisions under this act to help the smaller entities from getting bullied by the bigger entities.

Section 142 of the Trademark Mark Act, 1999 protects the smaller entities from the larger entities when these bigger entities initiate a baseless infringement proceeding just to overpower the smaller entities.

Section 142 of the trademark act, 1999 states that:

“1) Where a person, by means of circulars, advertisements or otherwise, threatens a person with an action or proceeding for infringement of a trademark which is registered, or alleged by the first-mentioned person to be registered, or with some other like proceeding, a person aggrieved may, whether the person making the threats is or is not the registered proprietor or the registered user of the trade mark, bring a suit against the first-mentioned person and may obtain a declaration to the effect that the threats are unjustifiable, and an injunction against the continuance of the threats and may recover such damages (if any) as he has sustained, unless the first-mentioned person satisfies the court that the trade mark is registered and that the acts in respect of which the proceedings were threatened, constitute, or, if done, would constitute, an infringement of the trade mark.”

We have provisions for bullying not only in the Trademark Act but also in the following acts:

Patent Act of 1970,
Copyright Act of 1957, and
Designs Act of 2000.

The aggrieved party can file a suit against the other party who threatens or bullies for a trademark under the provisions of section 142 of the Trademark Act, 1999, and can seek an injunction and monetary compensation. The trademarks which are eligible for this are only registered trademarks.

HOW IS IT DEALT JUDICIALLY?

Whether bullying has taken place in trademark would depend from case to case and would be decided by the courts by keeping all the situations and circumstances in mind.

In the case of Bata India Limited vs VitaflexMauch GmbH[2015], a lawsuit was filed by the plaintiff against the defendant in which the plaintiff wanted to restrain the defendant from issuing threats of legal proceedings on baseless grounds. Here the main questions were whether the notice which was issued by the defendant to the plaintiff contained any baseless legal threat and should the plaintiff be entitled to any damages or injunction for this. The Delhi High court held that the threats were made by the defendant to the plaintiff and were unreasonable. Therefore, the court issued an order against the defendant by restraining the defendant from issuing any further false threats.

Although India has a framework for protecting smaller entities from groundless, unreasonable, or baseless threats, there is no statute that would precisely define as to what would constitute a groundless, unreasonable, or baseless threat. However, some parameters such as the first user over the first one to file, deceptively similar which can cause confusion… etc. are used by courts to determine whether or not trademark bullying has occurred.

CONCLUSION

Thus, with this, we can conclude that there is a lack of clarity in the law with regard to what exactly constitutes trademark bullying as trademark bullying happens when an entity threatens the other entity with legal proceedings on unreasonable, baseless grounds. The smaller entities have to depend upon the fewer precedents to justify their contentions.

To make the law more efficient the term trademark bullying can be defined under the Trademarks Act, 1999, or the Trademark Rules, like the USPTO report. Also, under section 142 the terms baseless and groundless can be given more clarity so that courts can take decisions more efficiently.

BY-

SONALI JUYAL

2ND YEAR LLB,

ILS LAW COLLEGE, PUNE

Harmonizing Space Laws and IPR

The world post-World War II has seen tremendous growth in the field of space exploration. Ever since the launch of the first satellite in space, the Sputnik-I by the USSR followed by Explorer-I of the USA, space exploration has increased rapidly. But increased development in space exploration technology coupled with private participation and globalization has enumerated the need for clear reconciliation between Intellectual Property Laws and Space Laws as the need of the hour. However, as of today, there is no clarity as to the relationship between Space Laws and Intellectual Property Laws.

The Requirement for Harmonization

The need for harmonizing Intellectual Property Laws with Space Law lies in several recent developments. Firstly, there is an increased participation of private sector players in the field which was not the case in the 20th century. These private entities are generally far more aware and interested in protecting their property, both tangible and intangible, due to the increased opportunity of monetization and commercialization. This was hardly the case with the government organizations that dominated the scene until a couple of decades ago. Secondly, the rapid development of technology has opened up new business avenues in space transportation and Exploration. Space Tourism, for example, is now no longer a very distant dream. This could open up the need to deal with the issue of protecting IPs other than Patents and venturing into Trademark and Design protection in space. Thirdly, a lot of work in space exploration is now carried out simultaneously across the globe through mutual cooperation. The question arises as to whose jurisdiction would an IP developed in such a way come under.

Hindrance to Harmonization

The biggest issue with Intellectual Property Laws being harmonized with Space Laws lies in the fact that the former laws are municipal in nature, i.e. their jurisdiction and applicability is restricted to the territory of the sovereign that made the law. Contrary to this, Space Law is a field of International Law that is applicable to the Outer Space Region – starting roughly 100 km above sea level. According to Article II of The Outer Space Treaty, 1967 (one of the most important international treaties regarding space law) no sovereign state can appropriate Outer Space as its own territory. This essentially means that there exists no concept of State Sovereignty in Space.

Step Towards Harmonization

Presently, due to a clear distinction between the “Outer Space Region” and “An Object Launched in Outer Space” existing in the Outer Space Treaty, the state which launches the object in space will be the one that can register the object under an appropriate registry, and shall retain jurisdiction on that object once it is in space. However, no clear law exists on whether Intellectual Property Laws would extend as such in outer space. Also, the fate of an object created by any activity in outer space itself, eg. in the ISS, is also unknown.

In this regard, The United States is the only country that has made a move in clarifying its position in regard to IPs, specifically patents. The US Space Bill extends the applicability of American Patent law to objects in space. The European Union has also tried to take steps in this regard, which has led to confusion because of non-clarity.

Indian Legislation and the lack thereof

Like most nations, India also does not have legislation regarding the extension of Intellectual Property Laws to Outer Space. But with the increased participation of several private players from India, albeit in a limited capacity, the demand for a definitive legal provision in harmonizing space law and IPR Law gains more traction. Such a bill should comprehensively address all pertinent issues in this regard, for example:

A civilian control agency for all space-related activities except those of weapons development and national defense
Promotion of commercial use of space
Promotion of space tourism
Clarification and provisions relating to Intellectual Property Laws
Provision for licensing for entrepreneurs in space
Clear rules for all space-related activities, so that no adverse effects on the environment are caused
Clarification of Labour Laws in space etc.

Conclusion

Space is a frontier that has only started being explored. It is thus important to regularize and clearly define the rights, obligations, and procedures of humans in space. This is even more necessary when we take into account the great financial prospects that space exploration also holds. The above discussion thus clearly portrays the requirement for harmonization of Space Laws with Intellectual Property Laws and what aspects effective legislation should try to cover to deliver fruitful results in the future.

BY-

SAURADIP MUKHERJEE

2ND YEAR, LLB

ILS LAW COLLEGE, PUNE

Film Titles and Trademarks

The advent of the digital age and new-age technologies has increased the accessibility of people to films. Movie theaters are longer the only way to release a film for the masses. OTT platforms have been a game changer in the film and visual entertainment industry across the World. And no doubt, India is in no way far behind. The streaming and OTT apps have seen a spurt of growth in the Indian market and with this has come an increase in the amount of content coming from these OTT platforms in the form of movies, web series, and other content. With this comes the question as to how to protect these movie names from being used by someone else.

The title of a film is used to identify the work as a whole. Titles are important, especially from a marketing standpoint, because they capture the audience’s attention, set the tone for movies, and maybe give them a recall factor. The famous Sholay and Avengers are two memorable movie titles. Given the brand and recall value that a title might generate, one may interpret it as his/her intellectual property, making it critical to protect it against unlawful exploitation by others.

The question is, what are the various kinds of protection accessible to a film title in India?

Types of Protection available.

Registering a film title with entities like The Indian Motion Pictures Producers Association (IMPPA), the Film and Television Producers’ Guild of India, the Association of Motion Pictures and Television Programme Producers (AMPTPP), and the Western India Film Producers’ Association(WIFPA) is standard procedure in the film industry. Before registering a title, an association will typically perform a thorough search with other associations to determine if the same or a deceptively similar title has already been registered with one of the other associations. Only members of an association can typically apply for title registration with that association. Though this appears to be straightforward, the problem is that registration with societies and groups is not legally binding.

On the other hand, while the entire production of the movie along with its script, dialogues, songs, and music may be copyrightable under the Indian Copyrights Act, of 1956, such protection is not afforded to the title of a film. Trademark law, however, does offer some protection in this regard. Film titles can be trademarked as service marks under class 41 of the Trademark Rules 2001. Class 41 of the Rules deals with, among other areas, entertainment. This however comes with certain conditions.

Classification of Titles and degree of protection

There can be generally two types of Film Titles, one that is one of a long series of movies, eg. Dhoom, Golmaal, Avengers, etc., and standalone films, eg. Sholay, Swades, Inception, etc. The Indian Judiciary has consistently reiterated that it is much easier to get a registration for movie titles of the former type than of the latter type. Film Titles of series Films become easily eligible for registration as a Series Mark as defined under section 15 of the Trademark Act.

However, things are trickier for the titles of Standalone Films. In such cases, courts have ruled that it is required to demonstrate that such names have acquired secondary meaning. The Delhi High Court highlighted a few elements that would be significant in determining whether secondary meaning may be assigned in the case of Kanungo Media (P) Ltd. v. RGV Film Factory^{^[1]}, namely:

Continuity and Length of use
The degree of advertising and promotion along with the amount of expenditure incurred,
The sales figures of the number of Theater admissions, sales, and the number of people who purchased or viewed the work.

In the case of Sholay Media and Entertainment Pvt Ltd. v. Parag M. Sanghavi^{^[2]}, a film by “Ram Gopal Verma by the name “Ram Gopal Verma ke Sholay ” was barred from release by the Delhi High Court due to trademark and copyright infringements in regard to the cult classic Sholay. After a series of hearings, the Delhi High Court granted an ex parte injunction to prevent the defendants from violating the plaintiff’s rights and recognized the rights in the title of the picture, The defendant offered an undertaking that it would not violate the plaintiff’s rights.

In the case of Biswaroop Roy Choudhary v. Karan Johar^{^[3]} the court ruled against the plaintiff who had a trademark registration under class 41 by the name “Kabhi Alvida Naa Kehna” and refused an interim injunction against the defendant’s name by the same name. The Delhi High Court opined that the defendant was an actual user of the mark despite of not having a Trademark registration. Thus actual usage along with fame and marketing expenditure was held as more important than mere registration.

Conclusion

From the above discussion, it is clear that getting a registration for a title of a film series is much easier than a standalone film. The court’s behavior, however, in regards to standalone films gives a huge undue advantage to large production houses over small filmmakers as was seen in the “Kabhi Alvida Naa Kehna” case. There should be more consideration put towards the interests of small independent filmmakers so that they are not left in deep water by the court’s decision.

Written By-

Sauradip Mukherjee

2nd Year, LLB

ILS Law College, Pune

^[1] 2007 (34) PTC 591 (Del)

^[2] CS (OS). 1892/2006

^[3] 2006(33)PTC381(Del)

FROM PIXELS TO PROFITS-THE IMPORTANCE OF IPR IN GAMING

Intellectual property rights are legal protections that allow creators to control their creative and intellectual creations. Just like any industry, they have a huge role to play in the gaming industry, like protecting the code, artwork, music, and other elements of the game. The purpose of intellectual property rights here is to prevent others from copying, distributing, or creating game derivatives without permission from the rights owner. These protections are essential for game developers, as it ensures that they can earn revenue from their creations and have control over their use. Without intellectual property rights, game developers would be vulnerable to piracy and other forms of unauthorized use of their games, which could seriously harm their ability to continue creating new and innovative games.

Let’s take the example of the popular game Super Mario to understand what kind of IPs goes into a game:

Copyright: The code, artwork, and other creative elements of the Mario games are protected by copyright.
Trademark: The name “Mario” and the character’s distinctive appearance are protected by trademark.
Personality rights: The actor who provides the voice for Mario in the games may have rights to their performance.
Trade secrets: The game mechanics and technology used in the Mario games may be protected as trade secrets.

Intellectual property rights benefit players in the gaming industry by promoting a diverse and competitive market. When game developers have control over their creations and can earn fair compensation for their work, they can continue creating new and innovative games. This results in a wider variety of games for players to choose from, including a mix of big-budget and independent titles.

In addition, the protection of intellectual property rights encourages competition within the industry. Since game developers cannot simply copy the ideas of their competitors, they must constantly strive to come up with new and unique concepts for their games. This drives innovation and creativity, leading to a better overall gaming experience for players.

Furthermore, intellectual property rights help to ensure the quality of games. When developers have the legal means to prevent others from copying their work, they can put more time and effort into creating high-quality games. This means that players can trust that the games they are playing are the result of the developer’s hard work and dedication rather than cheap knock-offs or pirated copies.

Overall, intellectual property rights play a key role in promoting a diverse, competitive, and high-quality gaming market for players.

While intellectual property rights provide necessary protections for game developers, they can also have potential drawbacks. One of the main criticisms of these rights is that they can limit the sharing and remixing of creative works. Since only the owner of the rights has the legal authority to reproduce, distribute, or create derivatives of a game, others may be prohibited from using the game in these ways without permission. This can restrict the ability of developers and other creators to build upon and expand upon existing games, potentially stifling innovation and creativity.

Additionally, some argue that the strict enforcement of intellectual property rights can lead to excessive legal battles and disputes within the industry. If game developers are overly protective of their rights, they may be more likely to engage in legal action against others whom they believe have infringed on their rights. This can create a hostile and litigious environment, which can be detrimental to the overall health of the gaming industry.

Intellectual property rights are an essential part of the gaming industry. These legal protections allow game developers to have control over their creations and earn fair compensation for their work. Without this, game developers would be vulnerable to piracy and other forms of unauthorized use of their games, which could seriously harm their ability to continue creating new and innovative games.

At the same time, intellectual property rights also benefit players by promoting a diverse and competitive gaming market. By encouraging game developers to come up with unique and creative ideas, these rights help to ensure that players have access to a wide range of high-quality games to choose from.

While there may be ongoing debates about the appropriate balance of intellectual property rights in the gaming industry, their importance in protecting game developers and promoting a healthy gaming market cannot be denied. These rights are essential for supporting the sustainability and growth of the industry and should be carefully considered and respected by all stakeholders.

BY–

ANAGHA NAIR

2ND YEAR LLB

ILS, LAW COLLEGE PUNE

“Green” Trademarks: Promoting Environmentalism or Creating Confusion?

All of us must be familiar with the term trademarks but recently the term green trademark is much in vogue. Now in an era where climate change is at its peak and everything is going sustainable- seems to be a positive step but how impactful is still a question- one must be wondering what is even a green trademark or what different they offer or is it just a fancy term to lure customers and suck them in the whirlpool of consumerism?

“Green” trademarks are trademarks that are used to signal a company’s commitment to environmentally-friendly practices. These trademarks can help consumers make informed choices about the products they purchase and support businesses that are taking steps to reduce their environmental impact. The use of “green” trademarks is part of a broader trend towards environmentalism, in which individuals and companies are increasingly seeking out products and services that are sustainable and eco-friendly. By using trademarks to promote their commitment to the environment, businesses can differentiate themselves from competitors and build trust and loyalty with consumers who value sustainability.

Because of their intrinsic nature as source identifiers, trademarks may deliver the best in sustainable products by instantly indicating that the products carrying the marks, or services offered under the marks, are “green.”

There has been an increase in trademark applications combining the terms ECO, BIO, E, RE, and the like, as well as imagery of leaves or the Earth or the color green, to indicate that the goods/services offered are eco-friendly. Green trademarks include brands like BEYOND MEAT for plant-based meat products and GREEN TOYS made from recycled plastic milk jugs, Indian sneaker brand THAILI making shoes purely out of plastic waste DINEARTH for alternative source tableware and crockery products, MAMAEARTH for toxin-free natural beauty care products, and BIOTIQUE for skin and hair care developed from ayurveda with 100% botanicals.

Patagonia, for example, uses ecological materials and encourages users to reduce consumption by repairing or acquiring second-hand products. Patagonia has used trademarks such as WORN WEAR, BETTER THAN NEW, and WE’RE IN BUSINESS TO SAVE OUR HOME PLANET to express its environmental goals and influence consumer behavior.

The USPTO is “already authorized to regulate ‘green’ trademarks under Section 2(a) of the Lanham Act, which addresses false and deceptive marks” along with that The European Union Intellectual Property Office (the “EUIPO”) has as well recognized the presence of sustainable marks.

While all of this seems to look very nice and makes one hopeful for a better world one must also be aware that along with green trademarks there exists greenwashing. Greenwashing is the use of unsubstantiated claims about the environmental friendliness of products, services, or practices.

For example, Nestle stated in 2018 that it had “ambitions” for its packaging to be 100% recyclable or reusable by 2025. Environmental groups and other critics, however, pointed out that the corporation has not disclosed precise targets, a schedule to support its ambitions, or further steps to help people recycle. Similarly, in 2019, H&M debuted its own “green” clothing line called “Conscious.” According to the company, it uses “organic” cotton and recycled polyester. However, the line is nothing more than a marketing ploy to appear more environmentally conscious.d, false, or misleading claims about the environmental friendliness of products, services, or practices. One can find many such practices out there.

Another problem is that “green” trademarks lack a clear definition of what constitutes a green product or practice. This can lead to confusion among consumers and potential abuse of the system by companies seeking to capitalize on the popularity of environmentalism without actually taking steps to reduce their environmental impact. For example, the term “green” is often used very broadly and can mean different things to different people. Some people may consider a product to be green if it is made from recycled materials, while others may consider a product to be green if it is biodegradable or produces minimal waste. Without a clear definition of what constitutes a green product, it can be difficult for consumers to know what they are buying and for businesses to know what standards they need to meet to use green trademarks.

It is ultimately up to companies and regulatory bodies to determine the best approach to the use of “green” trademarks. However, some possible recommendations for companies considering using a “green” trademark could include:

Clearly defining and communicating the environmental benefits associated with their products or services
Ensuring that their claims of environmentalism are accurate and can be substantiated
Working with regulatory bodies to establish clear guidelines for the use of “green” trademarks

Green trademarks are critical in bringing together the ideals of technology and environmental sustainability under a single branding canopy. As a result, they have become a key marketing tool, generating interest in products and services while also giving the eco-friendly business an advantage over competitors. Because sustainability is the key here, it enables brands to fulfill their corporate social duties as well. Simultaneously, one must be mindful of the aforementioned fraudulent techniques. In some or many ways, the world is witnessing the true adoption of green trademarks, but the aforementioned greenwashing tactics continue to exist, leaving us to wonder whether they are truly trying to make a difference.

BY-

ANAGHA NAIR

2ND YEAR LLB,

ILS LAW COLLEGE, PUNE