The article is written by Aditya Srivastava, marketing executive at iPleaders.

The other day, I posted a question on facebook asking people to define success. Someone said it’s happiness. Another commented winning is success. Some said being the best at what you do is success. All these answers didn’t sound very convincing to me. I was looking for something more comforting, something relatable.

When I was a young kid, I could never play cricket. I still can’t. I just can’t coordinate the bat with the ball. I was ridiculed and mocked plenty of times for not being able to play the so-called national game. I confess I did cry over it a few times.

My mother saw me crying and asked me,

“What is winning in cricket?”

“Scoring more than the other team?” I answered.

“Correct! How do you ensure that you are scoring more than the other team?”

“By making more runs? Duh, mom!”

“Don’t you duh me. How do you make more runs?”

“By hitting the ball with the bat or by running between the wickets.” I was almost getting annoyed now.

“Exactly. So, why don’t you consider everytime you hit the bat as victory? You can have multiple wins you see. And you will know that you are definitely winning as well.”

Success is a very subjective term. Let’s take an example. While you were at the law school, probably scoring the highest grade was success. Maybe winning a moot, debate or getting a research paper published was success. As we graduated, getting a good job was success. Performing well at our job could be success too. Success could practically be anything. The bigger question is, how do you define success?

Imagine, how beautiful it would be to live like winning whenever you are playing. You could win multiple times and probably fail multiple times too. However, isn’t the very thought of winning ticklish? Who do you think could be a winner? Someone who takes a risk and performs or someone who doesn’t take a risk and still performs?

A friend of mine was not getting a job for a very long time. She happened to be extremely laid-back. She wanted results without putting in any effort. This was constant while she was job hunting. No effort and lack of knowledge was getting her no interviews. The ones she managed to get, she performed horribly in them. She was very disheartened for not being able to get through anywhere.  Although she wanted to be a corporate lawyer, she started considering litigation owing to her frustration.

I recommended her to start working on building her knowledge. I asked her to first take up a course on corporate law and give her 100% to it. If she managed to complete this course, she should consider herself successful. She took up the course. It was a pleasant change to see her work hard for something. Today, she is working at one of the best firms in the country. For her, her success meant that she could get herself to work hard to be where she is today.

Define Success for Yourself!

If you look at India’s history, many started by defining goals for themselves. Gandhi brought in a whole revolution by just picking up a pinch of salt. If an action as small as picking up salt from the seabed could change the history of an entire nation, imagine what setting up a goal for yourself could do.

Defining success may not be difficult. I meet a lot of people around me who are frustrated or fed up with their jobs. It is primarily because they don’t feel the sense of accomplishment. A very dear friend recently quit his job because he thought he was not up to the mark. The first step towards success is to take a step back. Analyse the circumstances, your situation. Stop being too harsh on yourself. It takes a lot to start believing in yourself. Once you learn to do that, success would be following you.

Barack Obama once said, “The real test is not whether you avoid this failure, because you won’t. It’s whether you let it harden or shame you into inaction, or whether you learn from it; whether you choose to persevere.” If you have ever read Rich Dad Poor Dad by Robert Kiyosaki, it gives a very simple mantra – The most successful people are the most rejected people in the world. If you have read about Abraham Lincoln, you will realize he failed a number of times before he became the President of the United States of America.

Success is overcoming this failure. It is accepting ourselves for who we are and learning from it to not repeat it ever again. If you are a practicing lawyer, chances are you might not be able to win a single case for the few years. Giving it your best shot is what defines you. If you learn from the mistakes, you won’t repeat them again. I had a chapter in my moral science class in primary school titled ‘Try Try Try Till You Succeed’, and I now understand the relevance of it.

What are you doing to succeed?

Just defining success or setting a goal for yourself is not enough. Your success is what you do to achieve that goal. It is striving towards that goal. Gandhi said, “means are more important than ends.” You need to start by introspecting, “Are you doing enough to achieve your goal?”

The thought of “what will make you succeed” should push you forward. Visualize it, think it through and live it. The road to success and failure is the same. Possibilities are that your plan might not work, but having a plan and acting upon it is success. The fear of failing won’t take over if you start believing that you have nothing to lose. Would you leave your toxic law firm job that gives you no time for yourself and move to a startup for a better quality of life? Maybe, maybe not. It’s a risk. The question is are you willing to take it?

Once you take risks, you will start learning on the go. When I was in college, I was restricted to what I thought was good for my CV. I was debating, writing research papers, maintaining a good CGPA. Was I content? No.

I decided that my success would be how much I can perfect my knowledge in the area of law I want to make my career. I took a risk of taking up an online course in order to gain domain knowledge. You can read about my journey of taking up an online course in my article titled: ‘Are Online Courses Worth It?’ After working hard for a year on the course, I realized that I have learnt what law school never taught me. I got an offer from a top-notch law firm and an MNC. Was taking the risk worth it? Yes, I believe it paid off.

This pushed me to take more risks in life, to believe in myself and to follow my passion. I quit my job at an MNC and joined the same company which made the course to pursue my passion for writing. Today, as I write for the entire legal community, and readers like you, I realize that the art of writing is also a giving of the very same course. That one risk of giving myself a year of virtual training has brought me closer to my passion.

After struggling through law school, feeling discontent with what I was doing for years, I now feel powerful, fearless, and most importantly prepared. I feel successful; and so can you.

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In this article, Nawlendu Bhushan of Campus Law Centre discusses whether RERA bars the original jurisdiction of NCDRC or not.

Introduction

In order to ensure accountability towards allottees and protect their interest as well as infuse transparency, ensure fair play and reduce delays the Government has passed the Real Estate (Regulation and Development) Act, 2016 (hereinafter “the Act”). A common issue faced by the homebuyers after passing of the new real estate law is regarding the place where they have to approach for getting their grievances settled. Either the Consumer Forum or the Real Estate Tribunal. The article clears the doubt.

Aggrieved homebuyers and RERA

Section 31 of the Act states that any aggrieved person may file a complaint with the Authority for any violation or contravention of the provisions of this Act or the rules and regulations made thereunder against any promoter allottee or real estate agent. It explains that the word “person” includes an association of allottees and any voluntary consumer association.

In case of any structural defect or defect in quality or provision for services as per agreement for sale, the allottees are entitled to get it rectified by the promoter within thirty days of the complaint. Allottees can bring such complaints within five years from the date of possession. In case the promoter fails to rectify the defects, allottees can claim compensation by filing a complaint to the RERA.  

So, an aggrieved homebuyer or allottee may file a complaint against any promoter or real estate agent in case they violate their obligations fixed by the Act.

The Real Estate Appellate Tribunal

Any person or the Appropriate Government aggrieved by any direction or decision or order made by the Authority or by an adjudicating officer under this Act may prefer an appeal before the Real Estate Appellate Tribunal. Such tribunals are to be established by the Appropriate Governments. The appeal can be made within a period of 60 days from passing of the direction or decision or order.

The tribunal is guided by the principles of natural justice. Orders made by the Appellate Tribunal are executable as a decree of a Civil Court.

Appeal against decision or order of the tribunal lies in the High Court.

NCDRC and its jurisdiction in case of foul play by promoters

The National Consumer Dispute Resolution Commission (NCDRC)  is established under the Consumer Protection Act, 1986. Apart from having an appellate jurisdiction against the orders of any State Commission, the NCDRC has original jurisdiction in entertaining complaints where the value of goods or services or compensation exceeds INR 1 crore.

The Supreme Court and NCDRC have already made it clear that a group of consumers having a common interest or common grievance and seeking a similar relief against the same person can come together without forming any association to file a case in NCDRC with a claim of INR 1 crore or more. Consumers can approach the district forum if their claim is not above INR 20 lakh and the state commission if their claim is in the range of INR 20 lakh to INR 1 crore.[1]

Does RERA bar the original jurisdiction of NCDRC?

An aggrieved person has two options to seek redressal for his grievances one to approach the RERA and the other to approach appropriate consumer forum. In case, the individual claim is less than INR 1 crore, the homebuyer can bring his claim to the NCDRC along with other homebuyers seeking similar relief from the same person if the aggregate claim exceeds INR 1 crore. But, only upcoming and ongoing projects fall within the ambit of the RERA. For existing projects where completion certificate has been granted only appropriate consumer forum has jurisdiction.

Most of the States’ legislations related to the RERA has an express clause that for filing a complaint to the RERA, the complainant has to ensure that no other complaint is pending in any other court or Authority. This restricts the options for aggrieved homebuyers as well as reduces the chance of multiple litigations on the same cause.

To appreciate which is a better forum, RERA or NCDRC, let’s compare the power, process and efficiency of these two.[2]

Conclusion

From the above comparison, it is clear that an aggrieved allottee of a project, where completion certificate has been granted, can approach the NCDRC or appropriate consumer forum only. Aggrieved allottees of an ongoing or upcoming project have both the options available. The provisions in the State enactments, which put a condition on the filing of a complaint that no complaint should be pending, make it clear that the aggrieved can choose only one recourse. In this way, the Act does not bar the original jurisdiction of the NCDRC but ensures minimum litigation on the same matter. Considering past records of the consumer courts and faster finality of NCDRC order (only one stage of appeal) against the backdrop of the real estate specific jurisdiction of the RERA, stricter penal provisions in the Act, it can be inferred that choosing either of the two depends upon the future course of litigations in the RERA.

References

[1]http://www.moneycontrol.com/news/business/real-estate/ncdrc-restricts-complaints-to-rwas-here-are-the-legal-options-for-homebuyers-2274327.html (Date of visit 20/02/2018, time of visit 12:35 IST)

[2]https://housing.com/news/rera-versus-ncdrc-will-protect-home-buyers-better/(Date of visit 20/02/2018, time of visit 12:35 IST)

In this article, Himanshu Mene discusses the Concept of Institutional arbitration.

Abstract

In the past decade, it has been observed that parties are hesitating in choosing India as a preferred seat of arbitration and moving towards international arbitral tribunals such London Court of International Arbitration or Singapore arbitral institutions. These institutions provide better facilities and quick disposal of dispute. On the other hand, the concept of arbitration has completely destroyed the very essence of alternative dispute resolution it neither cheap nor competent enough to resolve a dispute.

Introduction

India is slowly moving towards a modern economy. As per the OECD 2017 economic survey India’s growth was marked at 7.5% which made India the fastest growing G20 economy. [1] Its GDP (Gross Domestic Product) is expanding rapidly. Since two decades it has been a priority for policymakers to provide better investment opportunities and a hassle free trade mechanism.[2] At the same time, Indian lawmakers are focusing to provide better provisions of enforcing contracts and quick and easy of means for resolution of disputes.

India is progressing towards improving its global perception of doing business in India. According to the World Bank’s rating on Ease of Doing Business 2018, India ranked 100 out of 190 countries as compared to 131 in 2016.[3] According to areas tracked by Doing Business in 2016-2017 India was amongst the top 10 economies improving the most in reforms reducing complexity, cost of the regulatory process in the area of starting a new business, getting credit facilities and improving in the area of trading across borders.[4]

Even after prioritising all the reforms India still has a less effective legal system. It is a known fact that India has huge pendency of cases in various courts. As of 10.02.2018, there are more than 25 million cases pending.[5] As a World Bank’s study, India is ranked as 164 on the ease of enforcing contracts and still takes 1,445 days to resolve a dispute. The cost for dispute resolution is 31% of the Claim value. The quality of judicial process which includes court structure and proceedings, case management, court automation and alternative dispute resolution is also poor it is indexed at 10 out of 18.[6]

The above-mentioned statistics have been consistently present in the India judicial system. These statistics were driving away all the investors away from India. There was a die-hard need felt for out of court dispute resolution system to speed up the dispute resolution. Due to which various forms of Alternative Dispute Resolution mechanisms were introduced namely Arbitration, Conciliation, Negotiation and, Mediation.

The then Arbitration Act of 1940 was discouraged heavily on the ground of too much judicial intervention and lack of smooth proceedings.[7] Consequently, the Arbitration and Conciliation Act, 1996, based on the 1985 United Nations International Commission on International Trade Law (UNICTRAL) model law and rules, was enacted.

Due to its flexibility and unique process, arbitration becomes the celebrated dispute resolution mechanism in international trade disputes. India now is aiming to encourage arbitration and starting to make efforts to become a hub for international arbitration. Further to reach the desired goal the 1996 Act which led to various practical problems, crucial changes were brought by Arbitration and Conciliation (Amendment) Act, 2015. In addition to this amendment, a new statute came into existence which was aimed at revitalising India’s commercial dispute resolution ecosystem.

However, there were certain issues felt in making India a Global Arbitration. In a global conference organised by NITI Aayog on “National Initiative towards Strengthening Arbitration and Enforcement in India”, there were three areas where drudgery was needed. Firstly, there was a need to restructure the framework governing the arbitration. Secondly, there is a deficit in infrastructural support to encourage international arbitration. Thirdly, need to create awareness regarding arbitration as the best mode for dispute resolution. [8]

To encourage the dispute resolution through arbitration there is need to promote institutional arbitration in India. It is well-known fact that arbitration in India is predominantly conducted through the ad-hoc method and institutional method is not preferred. In the year 2016 out of 307 cases administered by Singapore International Arbitration Centre (SIAC) 153 involved Indians.[9]

In the recent times, there are steps being taken to promote institutional arbitration. In a recent discussion in the 8^th BRICS summit at Goa, a creation of BRICS-Centric arbitration centre was deliberate, with the aim of offering services on arbitrating international commercial disputes between BRICS countries.[10]

In December 2016, a High-Level committee to review the institutionalisation of arbitration mechanism in India was created under the chairmanship of Justice (Retd.) B.N. Srikrishna. The objective of this committee was to identify issues in the arbitration process and to find out the challenges faced in the development of institutional arbitration.[11]  The committee has submitted a report titled “Report of the High-Level Committee to Review the Institutionalisation of Arbitration Mechanism in India” on August 3, 2017 suggesting reforms to the arbitration in India.

Significance of Arbitration in International Commercial Arbitration

Among all the other alternative dispute resolution mechanisms arbitration is considered as the best technique for resolving commercial disputes. The significance lies in its characteristics.[12] Party’s autonomy allows the whole process consensual and private in nature. It allows the parties to decide the law through which the dispute needs to be resolved. The whole process aims at out of court settlement making it faster and convenient. Theoretically, arbitration can be conducted without judicial intervention. The tribunal is appointed by the parties, its powers and duties are also decided by the parties. It is all included in the arbitration agreement.[13]

An award is made by the tribunal according to the arbitration rules and regulations agreed by the parties. It is ensured by the tribunal that Due process and Principles of Natural justice are followed. According to some thinkers, there is no need of the law to govern the process the agreement enters by the parties is sufficient.

However, there is need of law and courts intervention can be allowed in specific circumstances. According to Lord Mustiill, there is a relationship between courts and arbitration. He puts it as:[14]

“Ideally, the handling of arbitral disputes should resemble a relay race. In the initial stages, before the arbitrators are seized of the dispute, the baton is in the grasp of the court; for at that stage there is no other organisation which could take steps to prevent the arbitration agreement from being ineffectual. When the arbitrators take charge they take over the baton and retain it until they have made an award. At this point, having no longer a function to fulfill, the arbitrators hand back the baton so that the court can, in case of need, lend its coercive powers to the enforcement of the award.”

The above statement though talks about the relation between the litigation and arbitration but it can totally be applied to today’s arbitration system has. It has become a dominant method in resolving the international commercial disputes. The arbitration has become the costly form of dispute resolution. No regulation of Ad-hoc arbitration has led to this situation, nevertheless. Modern arbitration is facilitating the resolution in well organized and cost effective manner through well-institutionalised centers and is contributing to the global economic development.

Concept of Institutional arbitration and Ad-hoc arbitration

It is important to understand that parties are free to choose the method of arbitration. It depends upon the facts and circumstances of their dispute. In India, parties have preferred ad-hoc method of arbitration, whereas internationally institutional arbitration is a preferred method of dispute resolution. Therefore it is important to understand both forms as they are having their own pros and cons.

Meaning of Ad-hoc Arbitration

It can be defined as a method of arbitration under which the parties where parties and the arbitral tribunal will conduct the arbitration according to the procedures which will either be previously agreed upon by the parties or in the absence of such agreement be laid down by the arbitral tribunal at the preliminary meeting once the arbitration has begun.[15]

Therefore under this method, the arbitration is conducted and arranged by the parties themselves and there is no involvement of the third party such as an institution. The proceedings are conducted by an arbitrator appointed as per the agreement between the parties. All the aspects related to arbitration needs to be decided by the parties themselves like the procedure of conducting arbitration, number of the arbitrators, how the appointment would be made, rules and regulations applied to the arbitration.

However, as there is no institution involved in it is important to that the parties agreeing to arbitrate should have the spirit of co-operation and has the intention to accept the award passed by the arbitrator. This process can be the flexible, cheap and less time consuming as there is no administrative body involved in the process.[16]

Features of Ad-hoc arbitration

Ad-hoc arbitration can be the best method of arbitration due to the reason that all the process is depending upon the parties and there is no manner in which any other authority or third party can interfere in it. This allows the parties to resolve the dispute in a faster cheaper and efficient manner.[17] Though according to one school of thought it is the responsibility of the appointed arbitrator to look for the best interest of the parties and administer the entire process in a well-organized manner.

Enhanced Flexibility: As mentioned above the main feature of ad-hoc arbitration is freedom of the parties to decide all the aspects relating to the process. This allows the process to be immensely flexible and party friendly.[18]

Speedy Disposal: The flexibility in deciding the process of dispute it permits the parties to decide and pick laws and rules that would make the process the faster. In some cases, the parties also decide not to discuss certain matters in the arbitration to save time.

Cost Saving: As there is no institution and administrative body involved in the dispute the cost of resolving a dispute comes down to a large extent. The major costs involved in the process is relating to the fees of the arbitrators and experts appointed as adjudicators and representatives to resort the dispute.

Meaning of Institutional Arbitration

It is that method of arbitration where the whole arbitration is conducted by an established arbitral institution or organization. The arbitration agreement itself provides for appointment arbitral institution. The parties specifically provide that the in case of any dispute arises in the period of contract the dispute would be solved through institutional arbitration.

In the case of Nandan Biomatrix Ltd. V D 1 Oils Ltd[19]it was agreed between the parties agreed to the resolve the dispute through institutional arbitration. The issue arose whether not providing specific name of the arbitral institution and only agreeing to resolve the dispute through institutional arbitration would make the arbitration agreement invalid. It was held that as the parties unequivocally agreed to settle the disputes through institutional arbitration and not though ad-hoc arbitration. Therefore, there existed a valid arbitration agreement between the parties.

These intuitions are preferred by the international business community as it provides them various services.[20] Such as providing a specific arbitration procedure, experienced panel of arbitrators and expertise that provide a quick and effective dispute resolution process. Some of the famous arbitral centers are The London Court of International Arbitration (LCIA), The Chartered Institute of Arbitrators UK, The National Arbitration Forum USA and The International Court of Arbitration Paris Singapore International Arbitration Centre, Hong Kong International Arbitration Centre(HKIAC).

Features of Institutional arbitration

There are several major advantages of institutional arbitration as compared to its counter-part ad-hoc arbitration. These intuitions provide for professionals and pre-established infrastructure and rules.[21]

Pre-Determined arbitration procedure: all the popular institutions provide for an arbitration procedure and the saves parties and their lawyers the effort of determining the arbitration procedure and some institution also the provide service of drafting an arbitration clause.

Updated rules in lieu of latest developments: it provides for updated rules taking into consideration the latest developments that are taking place in arbitration practice. This ensures that there is no ambiguity in relation to the arbitration process.

An efficient panel of Arbitrator and professional support: this is one of the major benefits of institutional arbitrator International arbitration institutions usually benefit from vast databases of arbitrators in order to assist parties in appointing appropriate arbitrators for the resolution of their disputes. The institutions have panels of experienced arbitrators specializing in various areas like construction, maritime, contract, trade, commodities, etc. available to them.

Well-built Infrastructure: these institutions have a tremendous work ethic and provide latest infrastructural facilities. They have sophisticated conference halls etc. All the above-mentioned advantages make the complete procedure speedy, risk-free and efficient and swiftly take the dispute resolution process toward better form.

However, besides all the advantages the biggest problems arise due to the superfluous flexibility arise in the ad-hoc arbitration.

Issues with Arbitral Institutions in India

It has been a decade since policymakers had dreamed of making India a hub international commercial arbitration. But still the dream could not be fuelled, there are several reasons for this. The former chief justice of the Supreme Court of the United States of America Warren E. Burger while addressing the American Bar Association said that:

“The entire legal profession has become so mesmerised with the stimulation of the courtroom that we tend to forget that we ought to be healers of conflicts. For many claims, trials by adversarial contests must in time, go the way of the ancient trial by battle and blood. Our system is too costly, too painful, (…). As healers of human conflicts, the obligation of the legal profession is to provide mechanisms that can produce an acceptable result in the shortest possible time, with the shortest possible expense and the minimum of stress on the participants. That is what justice is all about”[22]

The statement was made in the context of litigation and it was felt that there is need for Alternative Dispute Resolution (ADR) in our judicial system. But this current system fits perfectly in today’s arbitration mechanism especially the Ad-hoc arbitration. The dispute resolution has been too costly, too painful and moreover time-consuming. Therefore there was needing felt for institutionalising arbitration in India.

To address the same a High Level Committee was set up by an order dated on January 13^th, 2017 by the Ministry of Law and Justice, Government of India. The committee was chaired by Justice B.N. Srikrishna (Retired judge, Supreme Court of India). The object of the committee was to:[23]

1. To identify issues those are affecting the current arbitration mechanism in India.
2. To create a roadmap for making India a hub for international and domestic arbitrations.

The committee came out with a report on 3^rd August 2017[24] “Report of the High-Level Committee to Review the Institutionalisation of Arbitration Mechanism in India”. The report is divided into three parts, Part I deals with institutional arbitration in India, the current state of institutional arbitration and ad-hoc arbitration and various other aspects relating to the same. Part II deals with the case study of the ICADR and the Committee’s recommendations for its reform. Part III of the Report deals with the role of arbitrations in BIT disputes involving the Union of India.

As per the reports, there is a preference for Ad-hoc arbitrations by Indian parties. But the report suggested that there is a relative advantage of institutional arbitration over ad-hoc arbitration. The same has been discussed in chapter II of this paper in details. It was observed that not only the small disputes but also gigantic commercial disputes were solved through ad-hoc arbitration.

The report said that “India has not fully embraced institutional arbitration as the preferred mode of arbitration despite the existence of several institutions which administer arbitrations.”[25]

Current Situation of Arbitral Institution in India

As per the report there are more than three dozens of arbitral tribunal present in India, like the International Centre for Alternative Dispute Resolution (ICADR), Indian Council of Arbitration (ICA), the Delhi International Arbitration Centre (DAC), and recently added in the list the Mumbai Centre for International Arbitration (MCIA). Some of these institutions have their own set of arbitral rules or administer under United Nations Commission on International Trade Law (UNCITRAL Arbitral Rules).[26]

It is worthwhile to mention that there is an increase in the number of the institution but still the parties are not approaching these institutions at this level. Even the popular institutions like International Chamber of Commerce (ICC) and the SIAC. Recently the LCIA India has even closed its office in India due to insufficient caseload.

Even after having an edge over the ad-hoc form of arbitration in India the parties do not prefer the institutional arbitration. There are certain reasons why these institutions are not gaining popularity among Indian parties. The report suggested that there is need to change the structure these institutions are working in India.

Development of Arbitral Institutions in India

The report by the High-Level Committee discusses in detail regarding the development of the above mentioned Arbitral Institutions and the reasons why these institutions are the most preferred among the parties. Briefly, the reasons are

Efficient Governance: This is probably the major reason why they are most preferred arbitral institutions. All these institutions have modern and updated rules which allow them to offer parties more flexibility. Services like scrutiny of the draft arbitral award and other potential defects make them more preferable. These have experienced panel of arbitrator having international expertise and a well-organized administrative staff. The state of the art infrastructure is available for conducting the whole process.

Adequate Support from the government: The foremost reason given by the committee was that among two of the top five arbitral intuitions namely the SIAC and the HKIAC were immensely supported by their respective governments. The governments provided them adequate financial and infrastructural support as well as playing an important role in promoting them to international level. Maxwell Chambers was also established through the government support. This indeed is a problem in India.

Though, the New Delhi International Arbitration Centre (NDIAC) Bill 2018 which was recently introduced in Lok Sabha [27]is a positive step toward institutionalising arbitration in India. The bill provides for the takeover of the existing International Centre for Alternative Dispute Resolution, also proposes to set up an arbitration chamber.

Significant role Business Community: To fulfil the need of business of community asking for effective resolution services led to the establishment of several arbitral institutions HKIAC and ICC Court both were establish to fulfil the needs of the business community.

Supportive Arbitration Jurisdiction: The popularity of these institutions is due to the supportive legislative system. These jurisdictions such as Singapore, Hong Kong, and London are completely arbitration friendly seats. They have the better business-friendly environment and also provide for better legal services. The local legislative framework provides priority to party autonomy, the efficacy of proceedings, the sanctity of arbitral awards and the provision of ample court assistance in arbitrations.

Less Interference by Judiciary: According to the report all the mentioned arbitral institutions are blessed with a judicial system which is very supportive of arbitration. They not only respect the party’s autonomy but also preserve the sanctity of the arbitral award. Whereas in India too much intervention under the proceeding and erroneous interpretation of provisions of Arbitration and Conciliation Act has made it more difficult to arbitrate.

All these reasons were observed by the committee. Nevertheless, some of the feature even the Indian government is trying to adopt and make India an International hub for arbitration. This chapter answers the second question that what are the reasons why institutional arbitration is not preferred in India. The working of the top Arbitral institutions gives a fair idea as to what steps can be taken to improve the current situation to make India an arbitration-friendly jurisdiction.

Key recommendation and suggestion by Srikrishna Committee

After all the observation made by the committee, the reasons were identified regarding the unpopularity of institutional arbitration in India. On the above mentioned reasons in the above-mentioned chapters, the committee proposed some recommendation to improve the overall governance of arbitral institution and what can be done to boost institutional arbitration in India.

To increase the quality and performance of arbitral institutions and to solve the problems in their working following recommendations are made:

Establishment of Statutory Autonomous body: Arbitration Promotion Council of India (APCI) should be established at national level. This autonomous body would comprise of the representatives from the government, legal community, and arbitral institutions. The members of the body shall have substantial expertise in arbitration. The main function would be grade the arbitral institutions as per the grading policy, to make recommendations regarding the governance of institutions, conduct researches etc. and would always make an effort for promoting Institutional Arbitration in India. On the grade given by APCI, the High Courts and Supreme Courts may be encouraged to designate arbitral institutions as authorities for appointing arbitrators.

suggests that there is a need for accreditation of arbitrator as this is one of the major issues faced by the arbitral institutions. A group of the qualified and experienced arbitrator will change the entire perception regarding the institutions. In order to be chosen as a member of the arbitral institution, the professional would require adequate education, substantial experience as an arbitrator and professional and moral standing. The selection can be done with the help of interviews, qualifying examinations, professional education from reputed institutes etc. can be taken into consideration. No separate body will be created APCI would administer it.

Establishment of a specialist bar: For speedy and efficient governance of arbitration preceding the Committee is of the opinion that there should be an establishment of a specialist arbitration bar and arbitration benches in India. The arbitration bar would comprise of a young and trained pool of arbitrators who has substantial expertise in arbitration and accredited by the APCI.

Establishment of a specialist bench: The specialist arbitration benches, on the other hand, would deal with arbitration disputes such as the challenge of an award under section 34 of the Arbitration and Conciliation Act and resolve the uncertainty. Judges of Commercial courts will also be forming part of this bench and would be provided with periodic refresher courses on recent developments in arbitration. This would help to reform arbitration by having lawyers and well-informed judges who can promote best practices of international arbitration in India.

Creation of Standing Committee: To ensure that the Indian arbitration laws and practice are in line with the recent development, a standing committee can be constituted under the authority of APCI. The function of the committee varies from reviewing to government’s policy on arbitration to promoting institutional arbitration. It would also be regularly monitoring the provisions of Arbitration and Conciliation Act.

Enhanced Role of Government: The government’s role would be to actively encourage institutional arbitration and provide infrastructural support. The government may facilitate institutional arbitration by helping build a physical infrastructure and also take steps to build integrated infrastructure such Maxwell Chambers.

Promote Mediation as a viable ADR mechanism: According to the committee, there is need to create a difference between ADR mechanism and litigations. Other forms of dispute resolution are also equally important. The committee stressed on the promotion of mediation, as there is a boost in the use of meditation as a form of dispute resolution. There has been a considerable progress in the conduct of mediation. The “Med-Arb” combination is also praised for being more efficient and has greater party autonomy than mediation and arbitration separately. It is suggested that all the arbitral institutions should also provide for mediation services through a cell. APCI has been authorised to set standards to enroll the mediators.

Thus, these are the recommendations given by the committee in brief and this proves that if all these recommendations are fulfilled then surely in coming years India can be a hub for international arbitration and mediation.

Conclusion

High-Level Committee to review and reform the institutionalisation of arbitration, SAIC’s tie-up with Gujarat International Finance Tec-city, discussions about BRICS-Centric Arbitration Centre shows that we are moving to the right direction.

In order to make India a global hub for International arbitration and mediation there is a need to face-lift and revamp the entire structure of arbitral institutions. The issues faced by the institutions can be resolved through the recommendations of the committee. There is an urgent need to understand that there is a difference between ADR and Litigation. ADR specifically Arbitration and Mediation are the unsurpassed forms of dispute resolutions.

However, this can be only done with the support from the entire stakeholders in the process. The business community should start understanding the potential of Institutional arbitration and indulge in resolving the dispute in an efficient manner. Secondly, it is the responsibility of state to create an arbitration friendly environment by supporting these institutions by providing required financial and infrastructural support. Legislative and the judiciary need to work together and bring out a policy which would support party autonomy rather than imposing mandatory rule.

It is equally important to ensure that the institutional arbitration in India is speedier and more cost-effective. To achieve a continuous effort would be required by the arbitral institutions and gain the confidence of parties to move towards mitigation instead of litigation. This can be achieved by providing state of the art facilities, experienced arbitrators, and effective administrative body and well-designed framework. Therefore, if we “Evolve” as arbitration friendly eco-system, “Devolve” all the lacunas only then we can “Resolve” the disputes efficiently.

India is a country with great potential it has got the best possible opportunity to achieve this goal and emerge as the most effective arbitral seat in the globe.

References

[1] OECD Economic Surveys: India. (Feb. 9, 2018), http://www.oecd.org/eco/surveys/economic-survey-india.htm

[2] Report of the High Level Committee to Review the Institutionalisation of Arbitration Mechanism in India (2017) p. 3. (Further The Report)

[3] Ease of Doing of Business The World Bank Doing BUSINESS (Feb.  9, 2018 ) http://www.doingbusiness. org/data/exploreeconomies/india.

[4] Id.

[5] National Juridical Data Grid ( Feb. 10, 2017 ), http://njdg.ecourts.gov.in/njdg_public/main.php

[6] Supra Note 3.

[7] Indian Council of Arbitration, (Feb. 10, 2018), http://www.icaindia.co.in/icanet/rules/commercial arbitration/arbitration conciliation/chapter1a.htm.

[8]  Bibek Debroy and Suparna Jain  Strengthening Arbitration and its Enforcement in India – Resolve in India (2016).

[9] Mridul Godha, Kartikey M. The New-Found Emphasis on Institutional Arbitration in India, Kluwer Arbitration Blog.(Feb. 12, 2018) ,http://arbitrationblog.kluwerarbitration.com/2018/01/07/uncitral-technical-notes-online-dispute-resolution-paper-tiger-game-changer/?print=print.

[10] Brics dispute resolution mechanism: Challenges ahead, but promises much Financial Express, Oct. 25, 2016, (Feb. 12 , 2018) http://www.financialexpress.com/opinion/brics-dispute-resolution-mechanism-challenges-ahead-but-promises-much/428845/

[11] Press Information Bureau Press Release, ‘Constitution of high level committee to review Institutionalization of Arbitration Mechanism in India’, Dec. 29, 2016, (Feb. 9, 2018) http://pib.nic.in/newsite/PrintRelease .aspx?relid=155959.

[12] Edlira Aliaj, Dispute resolution through ad hoc and institutional arbitration, 2, Academic Journal of Business, Administration, Law and Social Sciences (2016), (Feb. 17, 2018) http://iipccl.org/wp-content/uploads/2016/07/241-250.pdf.

[13] Id.

[14] Lord Mustill, Comments and Conclusions in Conservatory Provisional Measures in International Arbitration, 9th Joint Colloquium ICC Publication (1993).

[15] Sundra Rajoo Institutional and Ad hoc Arbitrations: Advantages and Disadvantages, The Law Review (2010).

[16] Aksen, G. Ad Hoc versus Institutional Arbitration, The ICC International Court of Arbitration Bulletin (Feb. 17, 2018) https://scholar.google.com/scholar.

[17] Blanke, G. 9 275 Institutional versus Ad Hoc Arbitration: A European Perspective 275 ERA Forum. (2008), (Feb. 17, 2018) https://doi.org/10.1007/s12027-008-0055-6

[18] Ad Hoc v International Arbitration Charles Russell Speechlys (Feb 17, 2018), https://www .charlesrussellspeechlys.com/en/news-and-insights/insights/real-estate/2013/ad-hoc-v-international-arbitration/

[19] Nandan Bio matrix Ltd. V D 1 Oils Ltd, (2009) 4 SCC 495.

[20] Supra Note, 12.

[21] The Report page. 15.

[22] Burger The State of Justice 70 ABAJ (1984), (Feb. 19, 2018) http://www.nytimes.com/1984/02/13/us/burger-says-lawyers-make-legal-help-too-costly.html.

[23]The Report page 8.

[24]The Report page 15.

[25]The Report page 13 para  2.

[26] Id.

[27] PRS Legislative Research, (Feb. 9, 2018) http://www.prsindia.org/billtrack/the-new-delhi-international-arbitration-centre-bill-2018-5036/.

This article is written by Kanti, a student of the University of Delhi. In this topic, she talks in detail about the procedure required in setting-up a microfinance in different ways.

Introduction

Microfinance company also known as Micro Finance Institution is a type of institution which provides a small amount of loan up to INR 50,000 primarily in rural and semi-rural areas where other banking facilities are not easily accessible.

In India, only Non-Banking Finance Companies are allowed to do finance business, but some other institutions are also given the leverage to do such activities to an extent.

Modes to register a microfinance company

• Through NBFC- It requires a minimum capital of INR 5 crore.
• Through Section 8 of Companies Act, 2013- No minimum capital is required.

But not all of the NBFCs are allowed to take deposits from the people. To have the taking deposits status, a different application has to be filed with the RBI.

Registration through NBFC

To start a microfinance company as NBFC, one has to get a license from the Reserve Bank of India under Section 45I(a) of the RBI Act, 1934 and this whole process may take months to complete.

What are the requirements for registration with RBI?

A company desirous of commencing the business of non-banking financial institution should comply with the following:

1. It should be a company registered under section 3 of the Companies Act, 2013.
2. It should have a minimum net owned fund of INR 2 Crore.

The following steps are involved in the registration –

#STEP 1: REGISTRATION

The first step to start a microfinance company is to register the company as a private or public company under the Companies Act. Initially, the company can be registered with INR 1 Lakh.

#STEP 2: CAPITAL

The minimum net worth required to register an NBFC is INR 2 Crore. So the next step is to raise the share capital both authorized and paid up up to the required amount.

#STEP 3: FIXED DEPOSIT

The next step is to get to deposit the sum of INR 2 crore in the Fixed Deposit in a freshly opened account and get a ‘no lien’ certificate from the bank. This certificate is needed when the application is filed with RBI.

#STEP 4: DOCUMENTS REQUIRED FOR ONLINE APPLICATION

To fill the online application available on the RBI website, the following documents are required-

• Duly certified Copies of Certificate of Registration.
• Certified copies of only the main object clause in the MOA relating to the financial business.
• Copy of Board resolution along with the self-declaration on behalf of the company that applicant company shall follow all the rules, regulations and notifications issued by RBI.
• A copy auditor’s report of Fixed deposit receipt & bankers certificate of lien indicating balances in support of Net Owned Funds (NOF).
• Bankers Report for applicant company, group companies.
• Certified copies of the highest educational and professional qualifications of all the directors of the applicant company.

#STEP 5: ONLINE APPLICATION

• Go to the provided link https://cosmos.rbi.org.in.
• Click on the “CLICK HERE” for company registration on the registration page.
• A window will be displayed showing the excel application available for download.
• Download the suitable application form (NBFC or SC/RC).
• Fill up the application form.
• Upload it to the same website.

The company would then be issued a Company Application Reference (CoA) Number for the application filled online.

#STEP 6: SUBMIT THE HARDCOPY TO REGIONAL OFFICE

Once the application has been filed online, the hard copy of the application indicating the online CoA number along with the supporting documents shall be submitted to the concerned Regional Office by the applicant company.The company can always track the status of the application form by logging into the above-mentioned address using the CoA Number.

Total Cost for Registration

The total cost for NBFC registration is around INR 4-5 lakhs including professional fees and RBI fees.

Who Can Borrow Loan From MFI (Microfinance Institutions)

An individual borrower with a total annual income not exceeding INR 1,00,000 in rural areas or INR 1,60,000 in urban and semi-urban can take loans up to INR 1 Lakh from two MFIs at the most. MFIs, in the first cycle of the loan, can disburse up to INR 60,000.

*** Documents Required initially to start the Business

If you are willing to register a Private Limited Company for NBFC registration, then you shall need at least two persons to start with. The minimum documents required for registration are as follows:

• Copy of PAN CARD
• ID Proof (Driving License, Passport, Aadhaar Card, Voter ID) – anyone
• Address Proof (Bank Statement, electricity bill, Mobile Bill, Telephone Bill) –anyone
• Passport Size photo

Apart from the above, we need the following documents for registered office registration:

• Rent agreement or ownership documents
• Electricity bill
• A copy of No Objection Certificate (NOC) from the owner.

REGISTRATION THROUGH SECTION 8

The second way is to register a section 8 company & apply for central government licenses features of which are as follows:

• • Maximum INR 50,000 can be given for the business purpose and INR 125,000 for the residential dwelling.
• No minimum net owned fund requirement.
• No RBI approval is required since RBI has exempted such companies from registration.

The registration procedure can be divided into 7 steps. Let us read the process in detail:

#STEP 1: APPLY FOR DSC AND DIN

This is the first step towards initiating the section 8 company registration. One can go to this website http://www.mca.gov.in MCA services DSC Services/ DIN Services.

DSC– An applicant who wants to get his Digital Signature Certificate(DSC) issued can go to the Certifying Authorities directly with the required documents in original and self-attested copies of the same. Some CAs also provide Aadhar eKYC based authentication also.

DIN

1. Any person who intends to apply for DIN shall have to make an application in eForm DIR-3 and should attach the following documents along with the form-

• Photograph and the scanned copy of supporting documents which are required.
• Verification by the applicant containing the name, father’s name, date of birth, present address, a text of declaration and physical signature of the applicant.
• Digital signature.

1. The eForm shall be uploaded on the MCA21 portal and shall be digitally signed.
2. Once the form has been uploaded, the fees for the DIR-3 form shall be paid through electronic means only (i.e. Netbanking/ Credit Card).
3. After successful payment of the fees, the applicant should register himself/herself on the MCA21 portal page. By using the login id given, log in to the same page and upload the eForm DIR-3 on ‘eForm upload’
4. Once the form is uploaded and payment is made, approved DIN shall be generated and if the details are identified as potential duplicate, Provisional DIN shall be generated. In such cases, the MCA DIN cell will examine the eForm DIR-3 and same shall be disposed of within one or two days.

#STEP 2: APPLY FOR NAME APPROVAL

This is the second step towards registering the section 8 company. The name may end with the words like Sanstha, foundation etc. Microcredit can also be used in the company name. One has to provide minimum 3 different names and maximum 6 names. Additionally, the name must be suggestive of company’s work. Fill INC-1 form available on the same website to register the name.

#STEP 3: MOA and AOA

After the name has been approved, draft the MOA (Memorandum of Association) and AOA(Articles of Association) and then file them along with the following documents in eForm INC 12 for the issuance of license-

1. INC-13 Memorandum of Association
2. Article of Association
3. INC-15 Declaration by each Subscriber to MOA (On Non- judicial stamp paper of INR 100/- and duly notarized).
4. A statement describing an estimate of Income & Expenditure for the next three years and it should be signed by the proposed promoters.
5. List of proposed Promoters and Directors of the Company.
6. The Subscribers page (AoA & MoA), handwritten by the subscribers and witness.

Once the Form INC 12 has been approved, a license under section 8 of the Companies Act,2013 will be issued in Form INC-16.

#STEP 4: FILING OF INCORPORATION FORMS ON MCA PORTAL

After the license has been issued, the applicant is required to fill the following forms-

I.Form No. INC – 7 (Application for incorporation of the Company) along with the following attachments:

1. Memorandum of Association
2. AoA Declaration in Form No. INC-8
3. An affidavit from the subscribers to the memorandum in Form No.INC-9
4. Proof of residential address of Subscribers
5. Specimen Signature in Form No. INC-10
6. Proof of Identity of Subscribers (NOC in case there is a change in the promoters after name approval).
7. PAN card.

II. Form No. INC – 22 (notice of situation of registered office) along with the following attachments:

1.Conveyance/Lease Deed/ Rent Agreement (Proof of ownership)

1. Electricity Bill Not older than 2 months.
2. No Objection Certificate.

III. Form No. DIR – 12 ( for the appointment of directors of the company) along with the following attachments:

1.DIR-2 (consent to act as Directors)

2.Affidavit by the Directors for Not accepting Deposits (On Non- judicial stamp paper of INR 100/- and duly notarized).

1. INC-9 Declaration by each Subscriber to Memorandum of Association (On Non- judicial stamp paper of INR 100/- and duly notarized).

#STEP 5: CERTIFICATE OF INCORPORATION

A Certificate of Incorporation is issued by the Registrar of Companies along with a unique Company Identification Number (CIN) if the Concerned ROC is satisfied with the incorporation forms.

#STEP 6: PAN and TAN

Nowadays, the PAN and TAN are allotted once the company is formed. The physical copy of PAN card is sent via speed post at the registered office of the company.

Now, let us quickly see the difference between Microfinance through section 8 company and NBFC

Conclusion

The major challenge one can face in this business is already established financial institutions such as banks, money lending firms etc. who are offering the same services which you intend to provide. The only way to handle this challenge is to create your own market. Though practically it is advised to start with section 8 company as it is a low-cost process.

In this article, Kanti, a student of the University of Delhi, talks about the format rights and their enforceability in India.   

Introduction

What are format rights?

Format rights, as the name suggests are rights to the format of television programmes. It may be the structures replicated in each episode of the programme or in each series of the programme or a combination of both. It is a commonly traded intellectual property within the Television Industry, but the challenge lies in their unauthorized use.

Requirements for format rights

• It is not enough for the idea of the format to be original, the description in the document should not only express the creativity of the owner but also the intellectual effort claimed to be invested in it.
• There must be a number of concrete elements in the format to be considered as a copyright-protected format.
• It should be possible to visualise an episode based on the elements of the format given in the document.

A bleak description of a few ideas which could also be used in different television shows with different characteristics cannot be a protected format.

A format registered with a network can be licensed to other channels across the world so that it can be reproduced according to the nationality and interests of the audience.

Examples of copyrighted formats

Mainly unscripted reality television shows such as ‘Who wants to be a millionaire? (Kaun Banega Crorepati in India)’, ‘Big Brother (Big Boss in India)’ etc. have been remade in multiple markets across the world.

Green v Broadcasting Corporation of New Zealand Case[1]

In this case, celebrated British presenter Hughie Green objected to the unauthorized adaptation of his TV Show ‘Opportunity Knocks’ by a production house in New Zealand. He claimed copyright to the script and dramatic format of the show. These were the title, the use of various catchphrases, the use of a device called a ‘clapometer’ to monitor audience reaction and the use of sponsors to introduce competitors. He failed in his objections because he could not show that his dramatic formats were more than accessories to the show.

The court held that “It is stretching the original use of the word ‘format’ a long way to use it metaphorically to describe the features of a television series such as a talent, quiz or game show which is presented in a particular way, with repeated but unconnected use of set phrases and with the aid of particular accessories.”

Law relating to format rights

Television formats are legally considered to be intellectual property which is regularly bought and sold by television companies, broadcasters, and distribution agencies. Format copying is inevitable in today’s world. There is no specific law around the world that protect ‘television formats’. Conventions state that there are two forms of television formats:

1. Paper (unpublished) formats
2. Published (produced) formats

Paper formats are those unpublished structures of a show mainly written to forward the idea or concept of the show to the producers, whereas Published formats are those structures which have been produced and converted into a Television show which can be licensed to protect it from format copying.

Though there is no specific law protecting formats, many countries have used other methods of protection including copyright law, passing off, unfair competition or breach of confidence, contract law, civil law etc.

Position in India

Television is a huge form of entertainment in India which has a lot of programmes in several languages. There is no concept of ‘format rights’ in India. But in various cases, one can see that it is protected as an Intellectual Property such Copyright, Trademark etc.

Enforceability of Format Rights in India

Copyright Act, 1957

The Copyright Act in India seeks to protect original works of artists, musicians, writers, and others. Copyright Act protects the expression of an idea and not the idea itself. Thus, making it difficult or non-existent to protect unpublished ‘paper’ formats. But the Courts have in their rulings given rise to the need for protection of TV formats in India.

Anil Gupta and Anr v. Kunal Dasgupta and Ors [4]

In this significant judgement, The Delhi High Court found that Sony Entertainment Television had misappropriated confidential information provided to it by one Mr. Anil Gupta and created a new tv show based on the said information. Mr. Anil Gupta was a media consultant who came up with an idea for a television programme titled ‘Swayamvar’ and provided written notes, oral presentations describing the format to the company using which the created their own show “Shubh Vivaah”. Mr. Anil Gupta started proceedings restraining Sony TV from airing the show. The Court held in favour of Mr. Gupta and stated that:

“Ideas, concepts and programme themes are raw materials for the entertainment industry and their protection is vital. When an idea is developed to a stage where it is actualised then the concept is capable of being a subject of ‘confidential information’”

Celador Productions Ltd v Mehrotra Gaurav[5]

The defendant, in this case, started a website which contained the online version of ‘Kaun Banega Crorepati?’ based on the international TV show, ‘Who wants to be a Millionaire?’. The plaintiffs alleged that certain elements were reproduced in the website such as images, logos, music and other elements. The defendant was sued in Delhi High Court for infringement of the trademark. The Court granted an injunction to prohibit the online game from continuing.  

Urmi Juvekar Chiang v Global Broadcast News Ltd & Another [6]

Urmi Juvekar Chiang, a noted scriptwriter created a TV format about citizen activism and solving civic problems. This idea was fixed in the form of a concept note and a production plan. The idea was presented to a channel CNN-IBN who created and broadcast their own show based on the format given by Chiang. Chiang sued CNN-IBN on two counts:

1. Breach of confidential information
2. Copyright infringement

The Court while deciding in favour of Chiang held the Copyright law not only protected the concept note but also allowed for the breach of confidence which occurred in the present case.

Twentieth Century Fox Film Corporation v Zee Telefilms Ltd & Ors [7]

In this case, the plaintiff alleged that the serial Time Bomb created by the defendant was an unauthorized use of his serial 24. But the court rejected the contentions raised by the plaintiff and held that the themes which both the serials share is a general topic, but the storyline of defendant’s serial is substantially different from the plaintiff’s serial. The Court further stated that mere similarity in the presentation of the serial cannot be said a valid ground to claim copyright protection.

The court laid down some important guiding principles regarding format rights-

• In order to claim that their work is copied, it needs to be established that a substantial part has been copied and this substantiality must be regarding quality, not quantity.
• Substantiality should be determined by individually examining the similarities between the programmes and then it should be considered whether the entirety of what had been copied represents a substantial part of the plaintiff’s programme.
• There is no copyright protection for an idea, concept, principle or discovery, it must be original to be protected.
• A mere outline or theme cannot be protected because theme or outline is not an intellectual property.
• However, a distinctive and unique treatment of a plot or theme is copyrightable as a literary work or as a dramatic work.

How to protect format rights?

If someone else other than the owner of the work infringes certain exclusive rights without permission given to the owner, then the owner can claim three types of remedies i.e civil, criminal and administrative. To know more on this, READ HERE.

How to register format rights?

Firstly, it is not necessary to register a work to claim copyright. The copyright is acquired automatically. But in case of any dispute of ownership of copyright, certificate of ownership is the prima facie evidence in the court of law.

To provide registration facilities for all types of work under copyright, the Copyright Office has been set up at B.2/W.3, C.R. Barracks, Kasturba Gandhi Marg, New Delhi.

The applicant can apply for registration online through “E-filing facility” where the applicants can file the application at the time and place chosen by them.

The procedure for registration is as follows

1. Application of registration on Form IV as mentioned in the first Schedule of the Rules.
2. Separate applications shall be made for every work along with the requisite fee as mentioned in the second schedule.
3. The applicant or the advocate( in whose favour a vakalatnama has been executed) should sign the application. Vakalatnama signed by the party and accepted by the advocate should also be enclosed.

Both types of works, published and unpublished can be registered. Even if the work was published before the Copyright Act,1957 came into force and still enjoy the copyright, can also be registered.

Three copies, in case of unpublished work and one copy, in case of published work should be sent along with the application. In case of unpublished work, the application has a discretion that he/she can send only extracts of unpublished work and can ask for the return of the extracts once it has been stamped with the seal of the Copyright Office.

Points to keep in mind

• Ideas, in order to be protected, must be expressed. The best way to get protection is by writing down the idea.
• As you develop your format, document everything like hard copy records of every proposal and all emails related to the project. The more detailed the format is, the harder is for anyone to claim it as theirs.
• You can register ‘titles’ and ‘catchphrases’ under Trademarks.
• Keep it confidential – do not share your idea with people other than those required to know.
• A distinctive and unique treatment of a plot or theme is copyrightable as a literary work or as a dramatic work.

Position in the United States of America (USA)

Format rights in the United States are protected under copyright law.

In the case of Sid & Marty Krofft Television Productions, Inc. v. Mcdonald’s Corporation[2] laid down a two-part test to determine similarity –

• Extrinsic Test – to determine whether there is a substantial similarity in ideas
• Intrinsic Test – compares forms of expressions and determines similarity based on the response of the ordinary reasonable person.

Position in the United Kingdom (UK)

Format laws do not exist in the legal system of the United Kingdom. An attempt was made to recognize ‘formats’ of television shows by the British Broadcasting Bill, 1990 which was brought forward due to the ‘Opportunity Knocks’ case. This bill recognized both format proposal and a format programme. This Bill defining ‘television formats’ never saw the light of day due to the vagueness of the definition.  

Banner Universal Motion Pictures Limited v Endemol Shine Group Limited & others [3]

In this recent case, the High Court of England and Wales held that that a particular television format did not qualify for copyright protection as a dramatic work as its contents were unclear and lacking in specifics. The court said that the TV format was so vague that is cannot be protected as confidential information. It is very difficult to obtain copyright protection in case of TV formats unless the document very specifically expresses of being a dramatic work.

FRAPA (The Format Recognition and Protection Association) is a European organization which aims to ensure that television formats are respected by the industry and protected by law as an intellectual property.

Conclusion

In the highly competitive television shows market, each producer looks for a sure-shot or a ‘hit’ for his programme. This is where television formats come to the rescue. Alongside with its immense growth, concerns on its legal protection have risen too, mainly because there is no particular law protecting format rights.

In India, the courts have recognized format rights which are copyrightable only in case of breach of confidentiality.

So far, there has not been any conclusive judgement by Indian Courts on the “Protectability” of format rights in the absence of a confidentiality agreement.

References

[1] [1989] RPC 700, [1989] UKPC 26

[2] 562 F.2d 1157

[3] [2017] EWHC 2600 (Ch)

[4] 2002 IVAD Delhi 390, AIR 2002 Delhi 379, 97 (2002) DLT 257

[5] 96 (2002) DLT 543, 2003 (26) PTC 140 Del

[6] 2008 (2) BomCR 400, 2007 (109) Bom L R 981, MIPR 2007 (2) 223, 2008 (36) PTC 377 Bom  

[7] 2012 (51)PTC 465 (Del)

This article is written by Aditya Srivastava of team iPleaders.

Regulation and compliance are two words that haunt every entrepreneur. Statutory compliances are meant to ensure that there is uniformity in conformation with a rule, specification, policy or standard mandated by law. Due to an increasing number of startups, the need for operational transparency has also seen a significant hike in the past decade. To combat this, startups are adopting consolidated checklists of compliance controls.

If you have a startup, or you are coming up with one, a  comprehensive checklist will help you with your viability,  traction of investors and avoid any legal mishap.

In a report by NASSCOM in the year 2014, India was projected as the fastest growing startup platform in the world. India was also ranked third globally as a startup hub with as many as 4200 startups. With nearly 3 to 4 startups being incorporated every day, they have seen an unprecedented rise. However, this is also indicative of the fact that there is a steep increase in the number of non-compliant startups. A survey by Taxmantra revealed that:

• Every 2nd startup gets Income Tax Notice for tax demands or for non-compliance
• 3 out of 7 startups finds a place on the defaulter list of Registrar of Companies due to non-compliance
• 2 out of 4 startups incur unnecessary pay-out by way of interests and penalties.
• 7 out of 10 startups shut down their business within first 3 years of their operations

While it might seem petty in the beginning, however, the consequences of non-compliance can be far-reaching. Needless to say, it can range from penalties, prosecutions and fines to various other issues that may lead to a close down of your company. Companies like, Buysellbitco.in and Shotpitch, are some examples of startups that had to close their shop because of non-compliances.  

Some of the major consequences that you can face due to non-compliance are

i) Difficulty In Securing Funding

Most startups thrive on funding. It is needed at some point or the other unless they are self-sufficient. However, the bare minimum standard for securing funding is the status of tax payments and other regulatory compliances. A company which hasn’t paid much attention to complying with the laws regulating their industry might not even be able to survive through the term sheet phase. Think of it as an investor, would you invest in a company which does not conform to the laws? Even if your startup manages to secure funding, wouldn’t you be answerable to the investor for additional dues that you are bound to incur because of the delay in meeting statutory compliance?

ii) Cancellation of Bank Loan and Government Tenders

If you fail to get an investor on board, you are most likely to turn to the banks seeking a business loan. Now, there would be a list of documents that a bank would require. For example, audited financials, auditor’s report, a certificate by a CA for the last 3 years, etc. These are certain compliances which are mandatory and cannot be circumvented. In addition, banks have their own verification mechanisms which ensure adherence to compliances for any company seeking a loan. In case of non-compliance, securing a loan from the bank becomes impossible. This also applies when startups seek Government Tenders.

iii) Status of a Dormant Company

In case of a non-filing history of 3 years or more, the Ministry of Corporate Affairs is going to term you a ‘dormant’ company. A dormant company is likely to receive demand notice by the RoC and are not eligible to seek any government/institutional assistance.

iv) Closing Down

A lot of young entrepreneurs believe that closing down the startup could be an easy option, however, that is not the case. Remember the time you were required to register for DIN? As per the Companies Act, 2013, the DIN of a director of a company which has failed to file its income tax returns for 3 consecutive years, is blocked. Which means you will be disqualified from becoming a director of any other company in the future.

Registration of the company is merely the first step towards compliance with law. There is a list of compliances you need to meet pre and post incorporation to be able to function effectively.

Here is a compliance list you ought to follow if you want yourself out of the vicious circle of non-compliance penalties:

#1 Opening A Bank Account

This is the first, and easiest of all compliances. To be able to be a function, the very first requirement is to open a ‘Current’ Bank Account in your company’s name. The fundamental requirement to open a bank account is a PAN Card registered in the name of your company and a copy of a Board Resolution authorising opening a bank account in the name of the company. Here are few noteworthy tips that no one will tell you:

1. There are a number of banks which provide “special privilege accounts” to startups. You should try to get such an account in order to avail additional benefits.
2. In case your PAN Card is still in process, PAN card application challan or the PAN mentioned in your Incorporation Certificate is sufficient to open a bank account.
3. Do not just stick to one bank account, try to open a minimum of two accounts. In case one bank account falters on any occasion, the other account can come to your rescue.

#2 Share Capital Deposition In The Bank Account

Within 60 days of the incorporation of the company, every shareholder is required to deposit their contribution to the dedicated bank account. It is necessary that such transfer is done through the personal accounts of the shareholders to the bank account of the company. It is mandatory that every shareholder who holds share worth Rs. 20,000 or more, deposit the money only by way of a cheque or via internet transaction. Although, the shareholders holding lesser than Rs. 20,000 can deposit the money through cash, however, it is recommended that such transfer is done through a cheque or an online transfer so that the amount is accounted for.

#3 GST Registration

GST registration is mandatory for all startups to avail various benefits under the GST Composition Scheme. Currently, the startups generating less than INR 20,00,000 in India (and INR 10,00,000 in the North Eastern States) are exempted from GST registration. It is important to note that if your startup is supplying goods outside the State in which you are located (Inter-State Trade) you are required to register yourself, irrespective of your turnover. This also applies if you are an online service provider.

#4 Income Tax Return Filing

Income tax returns are statements furnished by the company which includes the details of the company’s earnings, details of tax liable to be paid and tax paid, and any claims or refunds to be credited by the government. Filing of income tax return is mandatory even if the company has made no significant income or no income at all in a financial year. A case of non-compliance can attract a penalty, prosecution, and investigation by the Income Tax Department.

#5 Issuance Of Share Certificates To Shareholders

A share certificate is the proof of the stake any shareholder possesses in the organization. It is imperative for a company to issue share certificates within 2 months of its incorporation.  Non-compliance can add up to a penalty ranging from Rs. 50,000 to Rs. 5,00,000. Directors can be held independently liable for a penalty ranging anywhere from Rs. 10,000 to Rs. 1,00,000, depending on the size and nature of the startup.

#6 Disclosure Of Shareholding By The Directors

In the first board meeting after incorporation of the company, the directors are required to give full disclosure of their ownership status in the company. Every director is required to give the status of his interest, i.e., ownership/shareholding in the company. He is also required to disclose if he holds any such position in any other company or LLP. This is one of the most important compliances as it helps in bringing in transparency of decisions and ensures that third party compliances are duly met.

#7 Maintenance Of Statutory Registers

A company is necessarily required to maintain a record of Minutes of Meetings and various statutory registers like the register of directors, register of members, etc., which need to be filed with the Registrar of Companies from time to time. These registers act as a document of evidence for the decisions taken up by the company. A case of non-compliance can range from Rs. 50,000 to Rs. 3,00,000 and an additional fine of Rs. 1000 per day for continuous default.

#8 Annual Return Filing

In a recent state of affairs, the Ministry of Corporate Affairs has closed down 1 lakh companies for non-compliance with this provision. As per the Companies Act, 2013, every company is required to file its annual returns (in Form MGT-7) with the Registrar of Companies within 60 days of the Annual General Meeting (AGM). The returns are required to be filed in this manner :

1. The financials including Profit and Loss Account and Balance Sheet are required to be filed within 30 days of the AGM
2. The appointment of auditor needs to be filed within 15 days of the AGM

Penalties for non-compliance are massive. The penalty imposed for non-compliance is usually 12 times the cost of filing these statements. However, an additional filing can range anywhere from Rs. 50,000 to Rs. 5,00,000. In addition to this, a director in fault can be independently liable for an imprisonment of 6 months or with a fine ranging from Rs. 50,000 to Rs. 5,00,000 or both.

Apart from these compliances, there is a range of compliances which need to keep in mind. These are compliances such as trademark registration, the procedure for maintaining the books of accounts, the procedure to be followed in an annual general meeting, etc. It is extremely important that all of these legal compliances are duly met.

I have heard the CEO of our company often say, “A company can never survive if the people at the top do not have a 360-degree view of every process that’s involved in it’s making.” It is understandable for you to not have enough legal acumen to ensure that your company is complaint and risk-free. However, it is crucial that you update yourself, so that in future you can tackle with any mishap or even prevent it from happening. For this, you can take up a course like this, which will give you a practical insight on everything you need to know to ensure that there is no holding your startup back.

Till then, all the luck.

This article is written by Aditya Shrivastava of team iPleaders.

Students, who are willing to study law and want admission in a National Law University, are required to give Common Law Admission Test (CLAT). This year CLAT is being conducted by National University of Advanced Legal Studies (NUALS), Kochi.

Here is everything you need to know about CLAT, 2018.

How To Apply

The application for CLAT 2018 is available online. The form is available on the website: www.clat.ac.in

Documents To Be Uploaded With The Online Application

While applying for CLAT online, there is a list of documents that need to be uploaded on their online portal. The documents need to be scanned and uploaded at the time of the registration. Here is an exhaustive list of documents you need to be ready with:

• Front facing passport size recent photograph

• Scanned signature of the candidate

• The scanned copy of the certificate in PDF format issued by the competent authority to support the claim of Specially Abled Persons (SAP).

Application Fee / Previous Years Question Papers’ Fee

• Application fee for General/OBC/SAP and other category candidates: Rs.4,000/-
• Application fee for SC/ST category candidates: Rs.3,500/-
• The cost of previous years’ question papers is Rs.500/- (not included in the CLAT-2018 application fee of Rs.4,000/- or Rs.3,500/-, as the case may be)

Mode of Payment of Application Fee

Application fee can be paid online or through bank challan generated online.

Offline payments can be made after registering the application online and generating challans online. The print out of the challans generated have to be taken to the relevant bank for payment over the counter. Offline payments are to be made in CASH only.

The application form, complete in all respects and after payment of fees must be finally submitted on or before 31st March, 2018 (11:59 P.M.).

Eligibility

Individuals who are eligible to apply for CLAT, 2018:

Under Graduate Programme

• There will be no upper age limit for the UG Programme in CLAT 2018.
• As regards minimum percentage of marks in the qualifying examination (i.e., 10+2), the candidates must have secured:
  • Forty five percent (45%) marks in case of candidates belonging to Unreserved/OBC/Specially Abled Persons (SAP) and other categories, and
  • Forty Percent (40%) marks in case of candidates belonging to Scheduled Caste/Scheduled Tribe (SC/ST) categories.
• Candidates who are appearing in the qualifying examination in March/April, 2018 are also eligible to appear in CLAT 2018 online examination. However, they shall be required to produce an evidence of their passing the qualifying examination at the time of admission, failing which they shall lose their right to be considered for admission.
• The result of the qualifying examination (i.e., 10+2) shall be submitted by the candidate at the time of admission failing which the candidate shall be ineligible for admission to the Course.
• In case of equal marks, the break of tie shall be by the following procedure and order as under:
  • Higher marks in the component /section on legal aptitude in the exam;
  • Higher age;
  • Computerised draw of lots

Post Graduate Programme

• The candidates must have minimum percentage of marks in the qualifying examination [i.e. LL.B./Five-Year Integrated LL.B. (Hons.)/any other equivalent exam] as under:
  Fifty five percent (55%) marks in case of candidates belonging to Unreserved/OBC/Specially Abled Persons (SAP) and other categories, and
  Fifty percent (50%) marks in case of candidates belonging to Scheduled Caste/Scheduled Tribe (SC/ST) categories.
• The candidate must have passed/appeared in the final semester/final year examination of the qualifying examination on the date of his/her admission.
• In case of candidates who have appeared in the qualifying examination, he/she may submit his/her final result of qualifying examination within the time frame prescribed by the respective University/Institute. Till then such candidates may be given provisional admission.
• In case of equal marks, the break of tie shall be by procedure and order as under:

1. 1. Higher age;
   2. Computerized draw of lots.

Pattern Of The Exam

CLAT is considered as one of the most difficult entrance exam. It is designed keeping overall skills that are required by a lawyer at any point of time. The Pattern of the exam is as under :

Under Graduate Programme

Scope and coverage of questions under different subject areas:

• English including comprehension:

The English section is designed to test a candidate’s proficiency in English. It comprises of comprehension passages and grammar. In the comprehension section, candidates will be assessed on their understanding of the passage and its central theme, meanings of words used therein, etc. The grammar section requires correction of incorrect grammatical sentences, filling of blanks in sentences with appropriate words, etc.

• General Knowledge and Current Affairs

General knowledge will be evaluated on general awareness of current issues including static general knowledge. Questions on current affairs will test the candidate’s on their knowledge of national and international current affairs, which can be a huge sphere to cover.

• Mathematics

This section will test the candidate’s knowledge on elementary mathematics, i.e., maths taught upto 10th Standard.

• Legal Aptitude

This section is designed to test the candidate’s interest towards the study of law, research aptitude and problem solving ability. Questions may include legal propositions (described in the paper), and a set of facts to which the said proposition has to be applied. Some propositions may not be “true” in the real sense, candidates will have to assume the “truth” of these propositions and answer the questions accordingly.

• Logical Reasoning

The purpose of the logical reasoning section is to test the candidate’s ability to identify patterns, logical links and rectify illogical arguments. It may include a variety of logical reasoning questions such as syllogisms, logical sequences, analogies, etc. However, visual reasoning will not be tested.

The pattern of Question Paper for the UG Courses in CLAT 2018:

Post-Graduate Programme

The pattern of the question paper for admission to the Post-Graduate Course for CLAT-2018 is:

The entire schedule of CLAT can be found here. CLAT is undeniably a difficult entrance exam to crack. Securing admission in a National Law University can be a golden step towards your career in law. However, it is quite important that you are trained with perfection to get the desired results. LawSikho in association with iPleaders, which is one of India’s premier legal education online portal, designed by the alumni of NUJS, Kolkata, has come up with an online course which can rocket the speed of your chances of cracking CLAT. Enrol now and see your career taking the perfect support it needs!

Good luck!

In this article, Rupali S. Akolkar discusses Copyright Issues in the Media Industry.

Intellectual Property Rights in TV Reality Shows

It has become a matter of pride for every channel to boost of its own Reality Show and to have its theme, concept and taglines protected by means of securing their Intellectual Property Rights.

Copy Right Issues in the Media Industry

• Author’s work is legally protected by the copyright. After copyright, the work immediately becomes the property of the author. With the reality shows becoming popular, a lot of competition has been generated between and among channels to hunt employees of the rival channel or to get a secret view of their script. This causes a huge loss to the author, as well as the channel.
• In order to fund the serial, it becomes imperative that the script is shared with prospective investors. Since there is no documentary evidence of sharing, the same can be misused anytime and used for the personal gain without giving any financial or other credits to the owner. This can be best avoided by using legal means to secure your rights.
• Copyright does not protect the idea, per se. But if it is made into a tangible thing, like a script, or an email, the expression or documentation can prove the date of origin and the owner. This will help you along with a Non-disclosure agreement to protect your interests.

Ownership of Taglines

• Generally, it is the actor or the anchor who uses a particular tagline which becomes so famous, that it is for that actor or anchor using that tagline that the show goes on, and gets worldwide fame. For eg. The famous taline of Shri Amitabh Bacchan in Kaun Banega Karodpati, “Computer ji lock kiya jaye”.
• There can be a level of ambiguity as to whom do the rights in the tagline belong?
  • To the actor, director,
  • Writer,
  • Producer
• Here the Act comes into play. Sec. 2 (d) (v) of the Copyright Act states that the author of a Cinematographic work or sound recording is the producer.

Contracts to protect Intellectual Property

There is a constant race between channels in order to increase their viewer ratings. Due to this often there is poaching of employees and also snatching of concepts. Concept per se cannot be protected under the laws of Intellectual Property Rights in India, but their expression can definitely be protected. For example:

• If a person has a concept or a story around which his show or serial is to develop, he can express it in the form of a literary and dramatic presentation and then seek a copyright registration to protect the same.
• A person can even secure his rights in the other elements like the stage:
  • the presentation module,
  • the taglines used in the show,
  • the music composition etc.
• Securing his rights over certain important elements, and at certain vital stages can help him protect his show/ series from being infringed and reduce the vulnerability.

IPR and Production Bible or Formats

Zee Entertainment Enterprise [1] had initiated a quia timet copyright infringement and passing off action in Bombay High Court against Sony Pictures Network India for alleged infringement of their copyright in the Production Bible of India’s best Dramebaaz and contended that Sony’s Sabse Bada Kalakar was a copy of Zee’s show.

The propositions considered here were the same as in R. G. Anand Vs. M. S. Delux Films & Ors [2] :

There can be no copyright in the followings

• In an idea,
• subject- matter,
• Themes,
• Plots,
• historical or legendary facts

Violation of the copyright in such cases is confined to the form, manner and arrangement and expression of the idea by the author of the copyrighted work.

1. Where the same idea is being developed in a different manner, it is manifest that the source being common, similarities are bound to occur. In such a case the courts should determine whether or not the similarities are on fundamental or substantial aspects of the mode of expression adopted in the copyrighted work.
2. If the Defendant’s work is nothing but a literal imitation of the copyrighted work with some variations here and there it would amount to violation of the copyright. In other words, in order to be actionable the copy must be a substantial and material one which at once leads to the conclusion that the Defendant is guilty of an act of piracy.
3. One of the surest and the safest test to determine whether or not there has been a violation of copyright is to see if the reader, spectator or the viewer after having read or seen both the works is clearly of the opinion and gets an unmistakable impression that the subsequent work appears to be a copy of the original [3].
4. It was considered that in case of quia timet application the standard of proof is much higher and the facts of misrepresentation and damage could not be proved indisputably.
5. If we consider the order in its entirety the general opinion is that given the complexities involved in the reality shows, monopoly cannot be granted in non-specific terms. Although the production bible does enjoy copyright protection, it is not possible for all the common elements which are already in the public domain to enjoy such protection

Unquestioned

• There is an interesting case of the reality Show “Big Boss”, wherein, its makers the Endemol Group has sued Sun TV, Vedartha Entertainment and others[4], who were involved in the making of the Malayalee House show, for copyright infringement, alleging infringement of the production format, and seeking an injunction against them.
• Besides the conflict between the channels per se, there is also the possibility of infringement in case of taglines of:
  • other products,
  • Serials,
  • Names,
  • music compositions, or
  • song lyrics being infringed.
• The Big Boss Kannada makers Prism TV and Eenadu Kannada Television were restrained by an order of the Court in favour of Lahiri Recording Company whose copyrighted song “Yarivalu” was played in the background for one of the episodes of Big Boss Kannada.
• Further to this, there is an order of the Delhi High Court in India TV Independent News Service Pvt. Ltd. & Ors. Vs. Yashraj Films Pvt. Ltd., which states that a small amount of usage of songs in a television program did not amount to infringement and it was a case of de minimis.
• In the case of Saregama India Ltd. Vs. Viacom 18 Motion Pictures and Ors[5] (Special 26), the Calcutta High Court held that the use of the song “mere sapno ki rani” for less than 7 seconds was de minimis and not meant to be considered for legal action.
• In the international spheres, the Courts of America, particularly in cases involving claims of CBS and ABC, have declined to grant injunctive relief and damages to TV show plaintiffs more on the ground that although the ideas and stock elements were shared, the expressive content, design and details of the setting were all different, whereas in a case of infringement, they are supposed to be “substantially similar”.
• We had the famous case of Celador Productions Ltd. vs Gaurav Mehrotra And Anr [6]. Wherein the plaintiffs had filed a suit for permanent injunction against the defendants from running a website with the name crorpatikaun.com, which was a game based on the format of the game Kaun Banega Karodpati, or any name which was deceptively similar to that or “Who wants to be millionaires”. The Delhi High Court restrained the defendant from using the name crorpatikaun or Kaun Banega Karodpati as their second level domain name, in any manner to provide games based on the same format as that of the program of the plaintiff.

Character identity

1. In Arbaaz Khan Vs. North Star Entertainment Pvt. Ltd [7]., the copyright in the character “Chulbul Pandey” was discussed. The Bombay High Court opined that “As to the general principle that the character is unique and the portrayal of that character, as also the “writing up” of that character in an underlying literary work is capable of protection is something that I think I can safely accept”.
   • For a character to gain copyright, it has to have its own public existence and it must have gained a public recognition, independently.
   • Any reference to or use of such a character in a reality show, can bring a case of copyright infringement against the makers.
2. In the case of Barbara Taylor Bradford v Sahara Media Entertainment Ltd [8].

In the above case the plaintiff sued the defendants for infringing her copyright in the book – a Woman of Substance, and intended to stop the telecast of the 300 episode serial Karishma – A miracle of destiny. Court did not grant injunction stating that Copyright does not protect basic plots and characters.

1. In the hit TV Show Survivors, the producers sued the producers of the “Boot Camp” for substantial similarity in the show. The suit was ultimately settled, but what was clear is that the Copyright does not protect raw ideas but the expression of the program[9].
2. TV shows per se fall flat on the claims of copyrighting the ideas. But the expression and design can definitely be a subject for copyright. The major problem with the Reality TV shows is that they are unscripted, and Copyright protection is generally extended to “fixed expressions”.
3. There have been many cases of idea misappropriation especially when employees are lured with heftier pay cheques and vertical growths to change sides. This can be protected to some extent in India by means of the Non-compete clause and the Non-disclosure agreements with all employees, and participants who are going to be an essential part of the project.
4. In case of Reality TV shows, it is important to protect the script, story, or tunes i.e. the production bible by means of a copyright and the catchphrases which contribute heavily to the popularity of the show and which can be given a trademark protection also.
5. All information which relates to the story, policy, expression and design of the show can be protected by means of IPR and also through NDAs and contracts between the concerned persons.
6. Format recognition and protection is not always easy and during the MIPTV’s conference in Cannes, 13 companies from 11 countries have formed a Format Registration and Protection Association. It works to protect rights and stop format piracy. FRAPA is thus an international Format Industry Association which works in a dedicated manner to protect formats.
7. In case of Formats, it is not just enough to express the idea, but there should be creativity, novelty and originality in the expression. The more intricate and detailed you make the description, the more is the possibility of protecting it with a copyright.
8. In India, the format can also be registered with the Association of Motion Picture producers and Television Programs Producers of India or the Script Writer’s Association.

Offences and penalties

Offences of infringement under the Copyright Act are “Cognizable Offences” and such offenders can be subjected to:

• police search, and
• seizure

Sec. 55 of the Copyright Act provides for Civil Remedies

Sec. 63 of the Act provides for Criminal Remedies in case of Infringement and speaks of remedies by way of:

• Injunction,
• Damages,
• accounts, or
• other remedies conferred by law on the owner,

The punishment ranges from 6 months to 2 years along with a fine of INR. 50,000 to INR 2,00,000.

Sec. 64 empowers the police to seize infringing copies and all materials used to produce the same.

Trademarks

Besides the Copyrights, the names of the Shows can also be a subject of IPR.

In the case of Gen X Entertainment vs. Purple Haze Entertainment, the Bombay High Court directed the defendant to furnish a bank guarantee and a disclaimer, indicating that there is no relation between the serial Emotional Atyachar and the Picture sought to be released with the same name. Thus it is important to trademark the names also.

Other legal implications

• Besides Copyright infringement, there are other legal issues to consider in case of TV Reality shows.
• The privacy rights of the participants, particularly ordinary people, who may tend to disclose or reveal a tad bit more of their personal lives to be visible to the public.
• There are Advertising Laws, Broadcasting Laws, Censorship constraints, Internet and Telecommunication Guidelines, which need to be considered in the hosting of a show.
• During the Shooting, there may be a need to consider emergencies, and overall welfare of the team by ensuring
  • compliance with labor laws,
  • specific insurance policies etc.
• It is also necessary to follow the laws related to:
  • the Emblems and Names (Prevention of Improper use) Act, 1950,
  • The Drugs and Magic Remedies (Objectionable Advertisements) Rules, 1955, the user of Tobacco and other such products, etc.
• There are TV reality shows like Moments of Truth where the participants earn on speaking the truth but the questions are so filthy that they risk exposure before their family and it is almost a media confession. The people who opposed such reality TV shows were told to resort to the Gandhian way of switching off their TV Sets instead. Thus Reality shows also have to face the ire of public when they challenge the ethical or moral laws of the country in which they are broadcasted.
• Besides these, there are various Central and State law requirements which have to be complied with.
• The Telecom Regulatory Authority of India has laid down certain guidelines for telecast of programs, and the duration of advertisements therein.
• In addition to that, the Reality Shows also have to follow the restrictions and guidelines stated by the Ministry of Information and Broadcasting:
  • the Advertising Standards Council of India,
  • Advertising Code under Cable Television Networks (Regulation) Act, 1995 and Rules 1994,
  • Standards of Quality of Service (Digital Addressable Systems) Regulations, 2012,
  • Animal Welfare Laws,
  • Guidelines issued by the National Commission For Protection Of Child Rights (NCPCR) with respect to:
    • safeguarding child artists in the Film and Television Industry,
    • Gaming and Sports Laws,
    • Competition Laws,
    • Gambling Laws,
    • Indecent Representation of Women (Prohibition) Act, 1986,
    • Cigarettes And Other Tobacco Products (Prohibition Of Advertisement And Regulation Of Trade And Commerce),
    • Production, Supply And Distribution (Second Amendment) Rules, 2005 besides the Local and National laws.

Thus although the Constitution of India guarantees freedom of speech and the freedom to choose any occupation, these are subject to certain restrictions in the interest of the sovereignty and integrity of India, security of the State, friendly relations with foreign states, public decency or morality, etc.

Conclusion

Subject to all these constraints, the Reality Show, has to still survive, and move head on to capture the attention of its viewers, and get an increased Television Rating Points (TRP) for the channel. This is only possible when right from the time of inception, the people involved are aware of their legal rights and take due care in protecting the intellectual property residing therein.

In simple terms, it is as good as officially naming your precious baby and ensuring that it has a legal and valid birth certificate so that the baby has an official identity and can seek all rights and legal remedies under the law of the country in which it is born.

References

[1] NOTICE OF MOTION (L) NO. 68 OF 2017 IN COMMERCIAL SUIT (L) NO. 74 OF 2017

[2] 1978 AIR 1613

[3] https://indiankanoon.org/doc/89959670/

[4] Notice of Motion (L) No. 1219 of 2013 in Suit (L) No. 514 of 2013

[5] TA. No. 29 of 2013 with T. No. 62 of 2013

[6] 96 (2002) DLT 543

[7] https://indiankanoon.org/doc/147169740/

[8] G.A. No. 2310 of 2003, A.P.O.T. No. 394 of 2003 with C.S.No. 145 of 2003 and T.S. No. 210 of 2003

[9] Survivor Productions LLC v. Fox Broadcasting Co., 2001 U.S. Dist. LEXIS 25511 (C.D. Cal. June 12, 2001)