Judges handling non-legal disputes : need for special knowledge to make their judgments fact-based

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August 11, 2021

This article is written by Ms. Somya Jain, from the Vivekananda Institute of Professional Studies. The article has established the need for a judge to obtain special knowledge on non-legal matters in dispute before the courts. It has enumerated the importance of judicial ethics in accordance with learning on specialised matters along with the limits on acquiring such knowledge.

Table of Contents

Introduction

The paradigm shift in the role of the judiciary in imparting justice from merely legal matters to other scientific matters has been greatly observed in recent times. Although the intervention of courts in the field of medicine is not a novelty, in the present period it has increased dramatically. In contemporary society, numerous cases emerge dealing with non-legal matters and the judges are often faced with the dilemma of factual analysis of the case at hand. This raises the question of whether the judges, who lack relevant expertise in such fields, should possess special knowledge or proficiency in these matters? Further, what are the limits and scope of acquiring knowledge in these special areas?

To dispense proper and fair judgments in matters relating to special areas, the need to comprehend and appraise the facts of the case is essential. For this, special knowledge becomes all the more necessary to be able to apply it judiciously to the case at hand and interpret the laws accordingly. Does this mean that the judges should be imparted with relevant education to handle special cases like medical disputes?

Judicial ethics in non-legal knowledge

The duty of judges has been time and again extended to include delving into the essence of the matter and the given facts of the case. Diligence and competency are some of the most acknowledged criteria for rendering the due performance of the judicial officer. This requires the judges to be proficient in professional knowledge. It includes a considerable amount of knowledge on non-legal matters as well which the judges may handle in their tenure. It cannot be denied that apart from knowing the statutes or the underlying principles in the case at hand, the judges should acquire the ability to understand the backdrop of the reality of facts incorporated in a matter. In the landmark case of M Siddiq (D) Thr Lrs v. Mahant Suresh Das & Ors. (2019), popularly known as the “Ayodhya Dispute case”, the judges apart from construing upon the relative statutes relied mostly on the background and the sentiments of the parties to the case. The judgment was based on the beliefs of the people and the evidence available before the judges for interpretation. After perusing the matter deeply, in accordance with the facts and circumstances, the decision of granting the entire disputed land to the deity Ram Lalla was imparted.

As far as the need for judges to incorporate non-legal knowledge on a subject matter is concerned, judicial ethics form the basis for the same. Judicial ethics comprise the moral code and conduct of the judges along with the values to be upheld by them. In India, judicial ethics is not found in any codes as such but it has been followed by the judiciary from the following three documents, namely- the Restatement of Values of Judicial Life adopted by the Chief Justices’ Conference of India, 1999, the Bangalore Principles of Judicial Conduct, 2002, and, the Oath of a Judge, as contained in the Third Schedule of the Constitution of India.

According to the commentary of the Bangalore Principles of Judicial Conduct, a judge shall take reasonable steps to maintain and enhance his knowledge, skills and personal qualities necessary for the proper performance of judicial duties, taking advantage for this purpose of the training and other facilities which should be made available, under judicial control, to judges. The judges should be trained to apply their knowledge to the disputes. Such training not only includes techniques to be followed by the judges in handling cases but should also consider the need for an extensive understanding of different subject matter in a case. One such case is S Sushma v Commissioner of Police (2021), where the Court headed by Justice Venkatesh observed that ignorance is no justification for normalising any form of discrimination. While recording the lack of knowledge on the LGBTQIA+ community, Justice Venkatesh went on to educate himself by the psychologists and members of the Trans community on the same so that justice could be served. It is essential for a prudent judge to make a reasoned decision by consolidating the legal interpretations along with the subject matter knowledge while imparting justice.

The Right to a fair trial is another measure that underlines the need for a judge to educate himself on the special matter concerning the dispute. Article 14 of the International Covenant on Civil and Political Rights, Article 10 of the Universal Declaration of Human Rights and Article 21 of the Indian Constitution establishes the concept of the right to a fair trial. The said right provides an opportunity for the parties to present their case to an independent and impartial tribunal. It further encourages the accused to present his case without any prejudice or bias thus safeguarding his rights. The right to a fair trial also enunciates the need for judges to delve deeper into the matter to impart reasoned judgements based on construed facts.

The underlying problems due to lack of relevant knowledge in special matters

There are often grey areas that are prevalent in disputes of special matters such as medical treatment, academic activity, finances and accounting, engineering, etc. The judges interpret the prima facie facts to render judgements but fail to occlude the gaps created by non-adherence of the knowledge related to the field. This results in several problems while delivering sound judgments. Like if there is any dispute about the novelty of scientific discovery, it requires the judge to peruse the science behind such inventions and a lack of knowledge in such a field would render the entire judgment bad.

Generally, the judges relying on their “special legal knowledge”, fail to comprehend the intrinsic facts of a case which in turn renders the judgement bad. Often judges are faced with questions pertaining to the scope of non-legal matters in a dispute that cannot be answered without the basic knowledge of the topic. As a result, judges end up interpreting the facts in accordance with the laws that are far from the realities of the scientific question prevalent in the case.

The judgment thereby lacks objectivity, fairness and imputation of justice. Recently, one of the most controversial judgments given by the Bombay High Court raised many unanswered questions on the efficiency of the justice imparted by the judiciary. In Satish v. State of Maharashtra (2020), the single-judge bench of Justice Pushpa Ganediwala gave a verdict wherein the observation was made by the Court that the act of pressing of breast of the child aged 12 years, in the absence of any specific detail as to whether the top was removed or whether he inserted his hand inside top and pressed her breast, would not fall in the definition of ‘sexual assault’ under the Protection of Children from Sexual Offences Act, 2012. The Court interpreted that Sections 7 and 8 of the POCSO Act will only be applicable when there would be groping or sexual assault through skin-to-skin contact. The Supreme Court, considering the aggravating factors in the judgment, stayed the order of the Bombay Court declaring it a bad judgment. It lacked objectivity and fairness.

When struck with scientific matters in a case, the judges instead of acting as a “gatekeeper” to safeguard the scientific evidence and facts in a court, end up being positioned as opposers to the relevant non-legal facts. In matters such as these, the parties tend to take up emotional arguments rather than legal arguments which fail to find their place in the eyes of the sitting judge. People question the integrity of the judiciary to merely impart justice and not ensure that justice is done. The case of Bombay High Court on the POCSO Act was one such judgment that brought much dissent in the fraternity. The belief of the people in the judiciary took a serious hit when the judgment was imparted as it was merely given in the name of justice and no actual justice was done.

Further, the individual opinions of the judge may significantly deviate the judgement from a lawful or a grounded decision. For example, a judge who is against euthanasia may present the reasons for not granting one or establishing the facts accordingly. This violates the right to fair and impartial trial as personal views act prejudicially to the interest of the parties.

Limits of acquiring knowledge on special matters

Now an essential question arises as to what should be the limit for obtaining special knowledge or education in a particular field? Do judges need to have knowledge relating to every field in society?

It is obligatory for a judge to comply with the rule of law by delivering reasoned and grounded judgement. Thereby, the judges often incorporate a “free will assessment” policy whereby they establish and interpret certain facts according to their internal beliefs based on objective evaluation. Prior to forming any opinion on the matter, it is essential for a judge to evaluate the evidence presented by the parties in a conscientious manner. Failure to do so, a reasoned and well-articulated decision cannot be delivered. Further, to form such an examined opinion it is necessary for a judge to analyse the non-legal facts as well. It is ethical for a judge to create a map of circumstances before delivering any judgement. A judge who is well-versed with the facts of the scientific field can surely have greater access to a more grounded decision as compared to a judge who solely relies on the arguments and evidence established by the parties in non-legal matters.

It is impossible for a judge to incorporate the entire knowledge of the field. It is also unrealistic to expect a judge to possess greater information on scientific areas as compared to a professional in that particular field. Additionally, it will be disproportional for a judicial officer to obtain a considerable degree of qualification in all the possible fields arising in disputes i.e. to collect knowledge ex-ante. This means that the judges should assimilate such knowledge and information on a case to case basis. They should strive to create a possible road of evidence and circumstances before discharging their judgements.

Although it is recommended to objectively form an opinion on the non-legal dispute, it nowhere allows the judges to fill the gaps formed as a result of lack of evidence. Our judiciary is based on the principle of impartiality and fair proceedings and it disallows the judges to fill gaps created due to lack of evidence or arguments. Judicial activism should not hinder an ideal adversarial trial. This will not prevent a judge from making the parties aware of the deficiency in their arguments.

As such, there is no ceiling for learning non-legal concepts. It depends on the judge as to what amount of knowledge is required for objective reasoning of the evidence and the circumstances. He should make the best efforts to interpret his knowledge on scientific matters in accordance with the facts presented. Suitable questions should be raised in the minds of the judges that would appreciate the dispute.

Measures for obtaining knowledge on different subject matters

There are various measures by which a judge can acquire the essential information regarding a scientific area disputed in a matter.

Code of Conduct

Every scientific field is enriched with certain codes of standard and practice, user manuals and guidelines establishing technical support. These sources may enable the judicial officers to learn about the new areas of technical fields. Apart from these, there is a wide range of free accessible data ready to be used. But the judges should be careful as a certain level of skepticism and stance is essential while applying the same.

Expert opinion

Time and again courts have been faced with the dilemma related to non-legal matters that require specialised knowledge. In such cases, the court finds it imperative to hire an expert proficient in his field who would guide the court with the technicalities of the matter. Expert opinion terminates the paucity faced by the judge in rendering a detailed judgement. It is viewed as imparting justice and fair trial at the instance of the parties. Expert opinion can be taken on certain financial, scientific, medical, artistic or other issues. Like, Section 45 of the Indian Evidence Act 1872, recognises the expert opinion having relevance in Indian courts. According to this Section, a person who is skilled and has special knowledge of foreign law, science and art, identification of handwriting and finger impression and electronic evidence, then opinions of such people will be considered relevant facts by the court and any facts which are supporting or are inconsistent with these opinions will be construed in accordance to the opinion itself. There are several cases whereby the judges rely on expert opinions. Like while conducting a postmortem, the opinion related to the cause of death by the forensic expert is considered by the judges.

Furthermore, handwriting experts help distinguish the writing of the person concerned for enumerating the essentials of the document. Further, in the landmark judgment of Navtej Singh Johar v. Union of India (2018), the judges considered the necessity to understand the psychology behind the attraction towards the same sex or opposite sex. For this various psychologist experts on the matter were called to share their opinions on the same. This made the decision of the court more realistic and grounded.

Although the role of experts in providing opinions on the matter in dispute is treated significantly, it should not prevent the parties from raising their concerns regarding the nature of impartiality and lack of competence in the suitable field of knowledge. Further, the experts should disclose all the material information and reassure the court of their impartiality and independence. The courts are not bound by the opinions given by the experts and can diverge from the same on reasonable grounds.

Special courts

Another important measure could be the establishment of separate courts in the legal arena which would deal with specific areas. India has largely adopted this measure as various courts dealing with independent matters have been instituted like distinct courts for matters related to companies, environmental law, family law, insolvency disputes, stock exchange matters, foreign exchange matters etc. It provides for the creation of separate tribunals or courts for specific matters.

The formation of separate courts or tribunals was initially foreseen to dispose of the matter speedily, more effectively and in a decentralised manner. But with the growth of the legal industry, the tribunals were enhanced to deal with the specialised matter and expanded their scope to serve the purpose of expertise and knowledge in specialised areas that was felt to be lacking in the judges of traditional Courts. As per the Statement of Objects and Reasons of The Constitution (Forty-Second Amendment) Act, 1976, revenue matters and certain other matters of special importance should be dealt with separate courts or tribunals dealing with specific matters. Therefore, one of the reasons for establishing tribunals was to consider the need to appoint special expertise and experience or possessing specialised qualifications to handle special disputes.

In the case of M.C. Mehta v. Union of India (1986), the Supreme Court observed that environmental cases require the analysis of scientific data and thereby it is desirable to set up dedicated environment courts at a regional level with a Judge and two experts, keeping in view the expertise required for such adjudication. According to the Choksi Committee 1977, “Special Tax Bench”, consisting of judges having special knowledge of the subject in such cases, should be established to specifically deal with tax matters. Therefore, several tribunals dealing with specific matters are formulated across India.

Conclusion

Judiciary is governed by the ethical conduct of the judges which involves diligence and impartiality. They have been given the status of “gatekeeper of justice” and it should be observed in a most meticulous manner. Added to this, a fair trial should ensure the delivery of a well-articulated, grounded and reasoned decision, based on objective evaluation. For this, it is essential for a judge to incorporate a certain standard of knowledge on technical matters of non-legal nature. Such knowledge will enable the judge to interpret the circumstances and dispute at hand in a more diligent manner. But there is no universal rule on the limit to acquire such knowledge.

It is based on the curiosity of the judge and the application and scope of the matter at hand. There are various sources available to obtain knowledge pertaining to a specific field. Hiring an expert is considered to be one of the most reliable sources even though the courts are not bound by the opinions of such experts. The judges hold the faith of people to provide them with justice and therefore adherence to the principles of ethical conduct of the judicature should be complied with.

References

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Sakal Papers vs Union of India- Freedom of Speech and Expression & restrictions on the business activities of citizens

By

Oishika Banerji

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August 11, 2021

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Screen-Shot-2020-01-02-at-9.32.13-PM — Image source: https://blog.ipleaders.in/article-14/

This article has been written by Pendekanti Lakshmi Supraja, pursuing the Certificate Course in Media and Entertainment Law: Contracts, Licensing and Regulations from LawSikho.

Table of Contents

Introduction

For the development of a particular country, the citizens should have the liberty to express their opinions and ideas without any obstruction from the Government. However, liberty should not be misused as it hurts the morality of the public. As the main condition of liberty, the freedom of speech and expression is given a significant position in the Constitution of India. Freedom of speech and expression is one of the fundamental rights given to the citizens under Article 19(1) (a) subjected to certain restrictions under Article 19(2). In democratic countries like India, the right to freedom of speech and expression is not only limited to individual rights but also the right of the community to hear and to be heard. The Freedom of the Press comes within the purview of the Freedom of Speech and expression since it involves the communication of the information and expression of one’s views, ideas.

The citizen of India is also given the right to do business activities of their own choice unless they harm others’ fundamental rights under 19(1) (g) and it imposes obligation both on the citizens and the Government. The citizen should not involve in such a business which are against the laws of the Government and the Government should not also pass any law or order that restricts the business activities of the citizens and one such situation we can see in the Sakal papers vs Union of India which will be discussed briefly where the Government passed an act which affected the petitioners right to freedom of speech and right to carry on the business activities.

Facts of the case

In this case, the petitioner is a private company that publishes newspapers. It is a Marathi newspaper company named SAKAL, a daily paper that consists of a total of 6 pages for five days and 4 pages in one day at the price of 7np, and the Sunday edition was at the price of 12np since it consists of 10 pages. The newspaper had allocated 40% of the space for the advertisement and the rest of it for news, articles, etc.

Later in the year 1952, the Government appointed a Press Commission to address the issues regarding the Press that formulated a report with certain recommendations which are the basis for the enactment of the act Newspaper (Price and Page) Act, 1956 and Order in 1960. According to them, the newspaper company should charge the prices based upon the number of pages i.e if they publish more pages they should charge more. The Act and the Order also prescribed the areas which should be advertised and the allocation of space for the advertisement. The number of supplements that can be published is also prescribed by the Act and the Order. The newspaper company along with two other petitioners filed a writ petition challenging the Act and the Order. They also challenged that the impugned Act and Order are a violation of Article 19(1) (a) of the Constitution.

Issue

1.Whether the Freedom of Speech and Expression include the Freedom of publishing and circulation?

Whether the impugned Act and Order is violative of the rights of the petitioners guaranteed under 19(1) (a) of the Constitution?

Arguments on behalf of the petitioner

The petitioner argued that if the impugned Act and the Order are enforced then the petitioner would violate Article 19(1) (a) of the Constitution. They contended that if they want to maintain the same number of pages, they have to increase their selling price or they should reduce the number of pages which will curtain the news. In either of the events, they choose to affect the circulation of the newspaper and also violate the right granted under 19(1) (g) of the Constitution. They further contended that the Government also imposes restrictions on the supplements required for the publication that would be treated as an interference with freedom of speech and expression of the petitioner. The Petitioner also stated that the impugned Act and the Order are violative of Article 14 since the Respondents favored some newspapers arbitrarily at the expense of other newspapers.

Arguments on behalf of the respondent

The respondent contended that the impugned Act and the Order are passed to regulate the unfair competition among the newspapers and to curb monopolistic combinations of newspapers which promotes the free movement of speech. Considering the practices of the large newspaper companies’ acts like controlling the prices of the newspaper in the market due to economies of scale the respondent contended that those newspaper companies will compel the newer and smaller newspaper companies to exit from the market. They stated that the provisions of the Act are regarding the maximum matters which are made available to the public by the newspapers and they did not intend to restrict the fundamental right of the Petitioner. They justified their actions claiming that they imposed restrictions on the business activity with the intention of public interest. They also alleged that the old newspapers have larger advertisement expenditure since they publish more no; of pages in which they give more space to the advertisements and petitioner is one of them. They further alleged that those companies are in an advantageous position that obstructs the entry of the upcoming newspaper companies and hamper their right to freedom of speech and expression and publishing their opinions.

Courts observations

The courts of India have observed different case laws which depict that the freedom of speech includes the freedom of publication i.e dissemination and circulation of the information.

In the case of Romesh Thapar vs the State of Madras, the court held that “freedom of speech and expression includes freedom of propagation of ideas, ensured by freedom of circulation and the basis of all the democratic organizations is the freedom of speech and expression, which is extremely important for its proper functioning.”

In the case of Brij Bhushan vs the State of Delhi, the Government passed an order directing the editor and publisher to submit the news for scrutiny which is related to communal matters and views about Pakistan. The court observed and held that the pre-censorship and any prohibition on the publication of the matters will be violative under section 19(1) (a) of the Constitution unless they are justified under Article 19(2) of the Constitution.

In the case of Virendra vs. State of Punjab, Section 3 of the Punjab Special Powers (Press) Act was challenged since it authorizes the Government to prohibit any publication or leaflet that is prejudicial to the communal order. Based on this section in this case the circulation of the newspapers had been prohibited from being circulated in Punjab from New Delhi. The Court held the section as unconstitutional and unreasonable since it neither placed any limit on the operation nor provided any representation against it.

In the case of Express newspaper vs. Union of India, the Court held that “that the adoption of measures calculated to curtail the circulation of information would be in breach of Article 19(1)(A) of the Constitution, thus restricting the scope of information dissemination or restrict its freedom to choose the means to exercise the right to freedom of speech and encourage it to seek government assistance.”

Judgment of the court

The Court held that the citizens’ rights to propagate their ideas and to do so should be given the right of publishing and disseminating, and circulate the information. The citizen can propagate either orally or by writing and hence the right to propagate comes under the ambit of the Right to Freedom of Speech and Expression.

After observing and analyzing the situation, the Court held that before this impugned Act and Order the newspaper companies were free to set their prices themselves but the impugned Act and Order interfered with the liberty of the citizens. Agreeing to the contentions raised by the petitioner that even a slight increase in the prices or reduction in the pages will affect the circulation of the newspaper, the Court held that it hampers the freedom to speech and expression as per Article 19(1) (a) of the Constitution. The court further held that the Act and order also limited the allocation of space of advertisement which in turn reduced the price of the newspaper thus violating Article 19(1) (a) of the Constitution.

The court held that there is nothing mentioned in Article 19(2) of the Constitution that allows the Government to cut off the right to freedom of speech and expression and infringe the freedom of speech of one person on the ground that it is for the benefit of the general public or certain section of the public unless it is justified. As far as the right under Article 19(1) (g) is concerned the court held that although the State has the power to restrict the right to any business for the sake of the general public they are not absolutely allowed to do so if they directly and immediately curtail the freedom guaranteed by the Constitution and in this case regulating the advertising space and the prices had directly and immediately curtailed the freedom.

After considering all the above-mentioned points and case laws the Hon’ble Supreme Court held that Newspaper Act 1956 and Order of 1960 are unconstitutional. The Court undisputedly held that “ the publication of newspapers not only pertained to freedom of speech and expression but also conduct a business according to Article 19(1)(g), which essentially implied reasonable restrictions on the newspaper business.”

Analysis of the judgment

In this judgment Justice Madhulkor made an exceptional remark saying that the right to freedom of speech and expression covers not only the content but also the volume of the newspaper. This is one of the landmark judgments which stated that restricting the number of pages, advertisements, prices, newspaper circulation would be violative of 19(1) of the Constitution. We can also learn that in this case, the Court interpreted the Constitution more broadly and not in a narrow way. In this judgment, the Court also held that the right to freedom of speech and expression cannot be curtailed to restrict business activities. This judgment is further followed in the case of Bennett Coleman & co. v. Union of India where it was held that the freedom of speech and expression includes not only the volume of the circulation and also the volume of the news.

Conclusion

By observing all the above-mentioned cases we can state that to determine the violation of fundamental rights the main test is to observe the consequences and the effects. The right to freedom of speech and expression which is an integral part of our democratic society includes the freedom of the press, freedom of circulation, freedom of publication, and dissemination of one’s views and opinions. Hence the Government should not pass any acts that create conflicts among the fundamental rights of the citizens.

References

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The pathology of video games from a human rights perspective

By

Rachit Garg

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August 11, 2021

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video game — Image source: https://cutt.ly/bkk6U4x

This article is written by Ronika Tater, from the University of Petroleum and Energy Studies, School of Law. In this article, she discusses the harmfulness of video games used by children and the pathological preoccupation with video games from the point of view of human rights. Also, highlights the solution to overcome such a situation.

Table of Contents

Introduction

With the advent of the internet and flexible and convenient access to everyone irrespective of age, it has simultaneously brought advantages and disadvantages. One of the concerning factors is the introduction of online violent games such as Pubg, counter-strike, etc. These online violent games are built in such a way that a child enjoys killing another human being in the game world. Consequently, affecting the minds of a child and their psychological upbringing. This is a matter of concern not only from a personal level but also from the human rights view. Hence, it is important to safeguard the health and the safety of the child by incorporating preventive steps to overcome this.

What are human rights

“Human rights belong to each and every one of us equally”. The Universal Declaration of Human Rights (UDHR) was constituted by the United Nations to provide standards that protect the dignity and integrity of all human beings. It recognizes and governs how an individual should live in society. It also states that there is a relationship between the society and the state should look after them. Governments are obliged to perform or prevent them from doing some act that may conflict with the human rights of others. Individual people also have responsibilities to respect the rights of others and not misuse their rights. Some of the essential features of human rights are below-mentioned:

Universality and inalienability

This means that humans are everywhere in the world. Neither of them can voluntarily give their rights up nor can take them away from others.

Indivisibility

Human rights cannot be divided into small rights, regardless of civil, political, economic, social or cultural. Every human is entitled to have equal status with such rights.

Interdependence and interrelatedness

Every human being is dependent on one another wholly or partly depending on the situation. For instance, protecting the right to health of one person depends on the realization of the right to profess any business or profession or of the right to information. The case of launching online violent video games on children is directly impacting their health and overall development.

Equality and non-discrimination

All human beings are equal by the virtue of their existence as human beings. Every individual is entitled to their human rights without discrimination irrespective of their race, colour, sex, age, language, birth, religion, caste, disability, or any other status.

Participation and inclusion

Every human being is entitled to active, free and convenient participation and to contribute their opinions in all spheres of life whether of civil, political, economic, social or cultural development. Hence, every human being must know the beneficial and harmful effects of video games on children.

Accountability and transparency

Every state is obliged to comply with the standard legal norms enshrined in human rights instruments. In case of any violation of human rights, the aggrieved party can institute a proceeding in front of the competent court or any other adjudicator as per the rules and procedures established by law.

Rights of children

The Convention on the Rights of the Child was constituted by the United Nations in consonance with the UDHR with the objective that childhood is entitled to special care and assistance. The Declaration of the Rights of the Child defines the term “child” by his or her physical and mental immaturity who needs special safeguards and care and appropriate legal protection. Hence, it is the fundamental responsibility of the society and the community to establish a natural environment for their growth and development and take all the necessary steps for their protection and assistance. Moreover, the convention provides the standards of the ideals as declared by the United Nations consisting of peace, dignity, tolerance, freedom, solidarity and equality.

What is online gaming

The fast-paced technological innovation and high-speed internet accessibility of the internet and mobile devices with internet connectivity have transformed whole society around the world, especially children. In recent times, children from a very early age have adopted and got acquainted with the technologies resulting in Information and Communication Technology (ICT) being an essential part of their lives. This access to technology has led to the rise in abuse and exploitation of children, thereby resulting in dynamic changes in the behaviour of children’s health. Most children are not aware of the harmful effects of these technologies due to a lack of parental supervision and monitoring. This puts children at most risk as engaging in violent games and sharing information and personal content with strangers may turn out to be a threat or misuse of their rights.

Online gaming is one of the major factors affecting a child’s overall growth and development. It forms an adrenaline rush with the depictions of violent visuals to engage players for a long period of time. The games are formed in such a way to win and attract more points and compare it with other peers, strangers from all around the world.

Some children usually get obsessed and addicted to online gaming and prefer to stay in their virtual life rather than playing in their real-life which is slow-paced and less easily controlled. Subsequently, children are easy prey to the offenders who try to engage children through a virtual setting and control them by forming a relationship through these games. They have the potential to manipulate the children’s social status by creating an environment of virtual friends. Offenders may use this opportunity to extract their personal information such as birth dates, pictures, school information. Moreover, the offender may gain their physical location where a child uses an online application.

The harmful effect of online gaming

In the present times, online games are formed in such a way to attract children, eventually leading to the children’s exposure to harmful online content. According to the Study on the Effects of New Information Technologies on the abuse and exploitation of children, it has shown that exposure to the internet may lead to exposure to harmful online content. The child may accidentally or intentionally access pornographic or related content that may affect their growth and development or otherwise. Harmful content can be categorized in a broad term consisting of audio, visual, written or in other material leading to negatively influence the children’s behaviour which may have a long term effect. It may consist of online pornography, violent video games, content on racial or ethnic hatred or any other sexual material.

Further, it has been seen that children may be exposed to harmful content by deliberately searching for or while playing any such video games which display pop-up advertisements from spam operators. These pop-up advertisements or any sexual content displayed on these websites may affect the children with the experience or signs of stress from the exposure while some children are not affected by them.

Children who are not affected by the content may form curiosity to gain more knowledge about the content or information. In either of these situations, the exposure of these harmful content has the power to influence the mind of the children and impact the child’s development of values and morals. These gaming websites have the potential to distract children from their academics and get them addicted to these games. While some websites and games provide the age restriction in their terms and conditions in order to ensure the children are not exposed to these violent ages at a younger age.

Another factor affecting the child’s health through online gaming

One of the other factors which may affect child health due to online gaming is social isolation. Online gaming may lead to negative repercussions on children as they have difficulty in seeking help from the outside. According to research conducted on socially isolated young people, it has been shown that the children may face an increased risk of exploitation such as bullying from their peers in real life. Hence, these isolated children turn to their online friends to befriend them and in certain circumstances publicly share personal information with their online friends, consisting of offenders.

The government of India’s stance on online gaming

In September 2020, PlayerUnknown’s Battlegrounds mobile (PUBG) and similar games in India were banned due to their violent, explicit, and addictive nature which has the potential to create a complex in the minds of children and PUBG had the same effects on children. The video game industry designs games with graphic and violent content to make the game interesting thereby, attracting the focus of children. On moral grounds, the Government of India is trying to protect children from such censorship and violent videos or erotic expression. Consequently, there has been a conflict between the governments and the gaming corporation. The government established a “Centre of Excellence” with the collaboration of the Indian Institute of Technology Bombay to look into the conduct of online gaming. Prakash Javedekar, the Union Minister of information and broadcasting stated that in order to promote and preserve the Indian values, heritage, and culture of India, the government is trying to make an effort so that the children and youth are acquainted and aware of our heritage and tradition. The only solution is not to criticise the online violent games but to create India’s online games and applications under the project of Make in India for the world. This would create awareness about the basic values of India not only in the country but also outside the world.

Rules and regulations

It is essential to note that there is no specific statute in India to regulate video games or in the case of obscenity or violence depicted in such games. Also, there are no judicial precedents to abide by on how to regulate the video gaming industry. Nonetheless, the following are some of the provisions which should be considered in case any situation arises:

Article 19(2) of the Constitution of India provides the freedom of speech and expression and also the exception to such freedom in the interest of decency and morality.
Article 39(e) and (f) of the Constitution of India provides that it is a directive state policy to ensure that the tender age of children should not be subjected to abuse, exploitation and moral and material abandonment. The State should ensure to facilitate and develop policies that protect the freedom and dignity of children.

The Indian courts have recognized that the linking of violent activities depicted in online video games have a far-reaching effect on children. Psychiatrists around the world have often stated that the behaviour change in the mind of a child is linked with the violence to video games. Hence, it is a matter of concern and the government and the video gaming industry should come in harmony to make the digital world a safe place for every individual, especially children.

Conclusion

The harmful effects of online games lead to the deterioration of a child’s health and psychology. Hence, it is necessary to develop policy guidance to regulate human conduct. Recent policies should be made to orient, train and support parents, teachers, and children in recognising and coping with the conduct of online game environments. With consideration to exposure of harmful content or bullying attention should be paid to educating parents and children in their educational institution about the hazards associated with the gaming world. The focus should be primarily paid to the parents as children are under the assistance of them and parents have to facilitate and protect them. Such policies are made in consultation with the parents to cope with the perpetrator and take action on time. Nonetheless, the standards should be made in such a sense so that they create a link between social responsibility, human rights, and child protection.

References

Constitution of India, 1949.

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6037427/.

https://www.unicef.org/child-rights-convention/what-are-human-rights.

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All you need to know about Disney’s trademark infringement

By

Oishika Banerji

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August 11, 2021

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This article has been written by Ananya Agarwal, pursuing the Diploma in Intellectual Property, Media and Entertainment Laws from LawSikho.

Table of Contents

Introduction

Disney, a diversified multinational mass media and entertainment conglomerate with annual revenue of around US$65.388 billion surely knows a thing or two about protecting its massive IP asset collection. Disney became a mega-conglomerate once it acquired the Marvel and Star Wars franchise and has permeated popular culture so much that it is difficult to avoid infringement of its trademark or copyright. Any unauthorized use of Disney’s intellectual property or violation of exclusive authorship rights can count as an infringement of its intellectual property. This intellectual property refers to various items that can be either trademarked or copyrighted, depending on their nature. To make the difference clear, here is a table enumerating Disney’s different IP assets:

COPYRIGHT	TRADEMARK
Movie	Logos
Music and music compositions	Slogans and catchphrases
Literary works	Brand names
Art including photography and digital imagery	Words, phrases, designs, or symbols used for distinguishing one brand from others
Video Games

For example, when Lion King was released, one of its songs ‘Hakuna Matata’ became very popular. Composed by Elton John with lyrics by Tim Rice, this song signified ‘no worries’ in Swahili. As the success of the movie grew, so did the popularity of the song. Thus, in 1994, Disney filed for a trademark on the phrase ‘Hakuna Matata’ and the mark was registered in 2003. The effect of this trademark is that the phrase cannot be used on clothing or other merchandise resembling Disney’s Lion King. However, the phrase may be used conversationally elsewhere as long as it is not connected to a Disney knock-off.

Concept of character rights

When discussing Disney’s trademark infringement, it is important to glance at the concept of character rights as well since it makes up an important part of Disney’s trademarks. Essentially, character rights and personality rights overlap, however, character right encompasses fictitious personalities in mainly comics and cartoons. Personality rights, on the other hand, include real human beings. Further, personality rights are owned by the celebrity, but character rights are owned by the ones producing the character. For example, if Iron Man’s character is infringed it would be Marvel’s concern but if the personality of Robert Downey Jr., who plays Iron Man, is infringed, it would be the actor’s concern. Since Disney has evolved multiple famous characters, it owns a host of character rights. Disney holds numerous copyrights and trademarks that restrict the use of the names and images of its characters. The trademarks allow Disney to prevent others from using certain fixed images of characters and many character names in a manner that could cause consumers to think the product or service in question was from Disney

For example, Disney can prevent others from using Elsa, a character from “Frozen,” in other movies, TV shows, or books. Disney could prevent someone from using the name “Minnie Mouse” on the box of a plush toy mouse.

Disney’s attitude towards infringement

Back in 1928, Walt Disney had a shocking realization that he did not own the rights to his dream project, Oswald the Lucky Rabbit. Since Disney had created the character for Universal Studios, the right of use existed solely with Universal. In the Spring of 1928, on a train journey after failed negotiations with Universal to increase his salary, Walt Disney vowed to create a character that would eclipse the fame of Oswald the Lucky Rabbit and whose rights Disney would retain. Thereafter, Mickey Mouse was born. But Walt was cautious now and designed the attitude of the Disney Corporation to be maximalists of trademarks and copyrights.

Walt’s aggressive protection of Mickey Mouse made him his fortune and developed the reputation which prevailed even beyond 2010: ‘Don’t Mess with the Mouse’. This referred to both the internal reverence employees were said to hold for the company’s lead trademark character and to a warning to external creators, including fans, who wanted to make secondary works based on Disney properties—including ones based on their adaptations of works in the public domain.

In lieu of its extremely protective stance regarding rights, trademark seems to be a crucial issue, especially with classics like Cinderella. It is important to note that although now there exist industry standards with respect to the title of movies, it is still not a trademark. So, it was common for other, smaller studios to release videos and DVDs of classic fairy tales at the same time that the same title would appear in theatres or home releases from Disney. Thus, it became frustrating for Disney to create so much hype for its content only to see small production houses riding on the coattails of its excitement via adaptations from the public domain.

Thus, to avoid trademark infringement of its content, Disney came up with two main ways to deal with this issue:

Business solutions involving tweaking of names
Legal solutions involving takedown notices and litigation

Business solutions to avoiding infringement

After facing constant tension with regard to their movie titles being infringed, Disney decided to tweak names of movies to terms that were not in the public domain to retain more protection over them. Thus, when they were releasing Rapunzel in 2010, they changed the title to ‘Tangled (2010)’ just before its release. Doing so separated Disney’s Rapunzel from any other Rapunzel adoption because now the public wanted the Tangled merchandise and not just any Rapunzel merchandise. Similarly, when Disney adapted ‘The Snow Queen’, they titled it ‘Frozen (2013)’ pre-release. Since there were several adaptations titled ‘Snow Queen’, Disney’s adaptation differentiated itself with a unique name. Even the names of the main characters were tweaked making them unique trademarks as well.

Legal solutions to combating infringement

However, business solutions are not effective once infringement has been caused. Here, legal solutions are required and Disney is not afraid to take that step looking at its litigious journey. Following are some instances where Disney has come down hard on the infringers of their trademarks with the help of the legal tools available to them:

Disney v. characters for hire

A discussion about Disney’s trademark infringement is incomplete without mentioning Disney’s most formidable litigious competition in this regard, Characters For Hire, LLC, an internet-based party entertainment for hire business. Disney has been involved in a trademark infringement suit with CFH since 2016, claiming that the latter has infringed several character trademarks by promoting and selling Disney’s Mickey Mouse, Snow White, Ariel, Aladdin, Princess Aurora, Iron Man, Captain America, Hulk, Green Goblin, Luke Skywalker, Yoda, Obi-Wan Kenobi, Darth Maul, and Frozen’s Elsa.

Importantly, in its defense, CFH never claims in any promotional content that Disney has sanctioned the sale of its characters. Thus, the use is blatant but what CFH relies on is that it has never intended to trick a consumer into believing that it is Disney selling them the characters. CFH claims that reference to the character as Elsa is merely ‘descriptive’ of the services the consumer will receive, i.e., an actor hired to dress like an animated character.

Interestingly, another defense taken by CFH is an argument that Disney had previously employed against Caterpillar Inc, in 2003. Back then, Disney had decided to use construction equipment with very clear Caterpillar logos in its George of the Jungle movie. To this, Caterpillar had objected stating unauthorized use of the recognizable trademark. Disney responded by stating that it was not their intention to create a likelihood of confusion that Caterpillar had endorsed a Disney movie. One can say that Disney could have simply used a generic logo in the scene and avoided the whole litigation process. The same can be said for CFH as well. However, it cannot be denied that ‘Princess Elsa’ generates a lot more traffic than a generic princess.

The tables in this particular case have turned for Disney and they are contending trademark tarnishing in that CFH is intending to trick the public into thinking CFH characters are somehow sanctioned by Disney and they will be getting Disney-quality characters at their parties and events. Disney is also pursuing trademark dilution arguing CFHs use of their marks hinders their ability to serve as unique identifiers of the plaintiff’s products and links the mark to a product of inferior quality. Ultimately, the defendants’ motion for summary judgment dismissing the Plaintiffs’ claims for trademark dilution, and copyright infringement were denied but their motion for summary judgment, (ECF No. 66), dismissing the Plaintiffs’ claims for trademark infringement, unfair competition, and false designation of origin was granted.

Star wars controversy

Before LucasFilms was acquired by Disney, the former did not sue every person making some form of derivative of the iconic Star Wars. However, when Disney acquired LucasFilms, this changed. Michael Brown started a ‘Lightsaber Academy’ that also had many Star Wars-related ventures. After sending multiple cease and desist letters to Brown, Disney eventually filed a complaint with a federal court in California. In this complaint. Disney stated that Brown was using several LucasFilms trademarks without authorization as part of his business. It especially contended that one of the activities of Brown was using a deceptively similar version of Disney’s trademarked Jedi Order logo and demanded $2 million in damages for each infringement.

[The complaint can be found at: https://www.documentcloud.org/documents/3143771-Lightsaber.html ]

Disney v. Kool Klown party

This is one instance that shows just how protective Disney is of its trademarks. The defendants were a couple running a small costume party wear shop. They became national news when Disney filed a lawsuit against them for trademark infringement, seeking damages worth $1 million. They allegedly infringed after they advertised the availability of two costumes for parties on their business website. The costumes, which were purchased on eBay, bore a close resemblance to Disney’s trademarked characters Tigger and Eeyore. Before demanding the same, Disney asked the couple to send them the costumes where they would be destroyed. However, on non-compliance, Disney did not hesitate in taking strict legal action against the small family-owned business.

Practical approach towards avoiding infringement

From the above discussion one thing is clear, ‘Don’t Mess with the Mouse’ is an adage that every new-age creator and seller must keep in mind. If you have an idea that involves the use of Disney’s trademarks, obtain consent from the company first. This consent must be obtained as a license which is a contractual agreement that lays out exactly what types of uses of the intellectual property are permitted and the price the person or business obtaining permission will pay for the uses. Disney has put substantial time and money into developing its characters and so is very restrictive in granting licenses. Prices for licensing Disney characters are not readily available to the public. However, as a general rule in licensing, the broader the rights granted, the more expensive a license will be. If you seek a license to Disney, your first stop will be Disney’s licensing website.

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Regulating electronic means to fight the spread of COVID-19 : an insight

By

Sneha Mahawar

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August 11, 2021

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This article is written by Rashmi Jha, from Amity University, Mumbai. This article is about how digital media is involved in tackling the COVID-19 pandemic.

Table of Contents

Introduction

Coronavirus outbreak is one of the most unpredictable global issues in terms of health which has also led to a decrease in the economy of the world. This crisis has put a burden on the government to contain this virus. Methods like testing, contact tracing, and strict quarantine could help in the early flattening of their incidence curves. Coronavirus was originally discovered in Wuhan, China and has spread rapidly in the world. India with more than 1.34 million people is struggling with control of transmission of the virus. COVID-19 is a transferable disease through direct contact with an infected person who has been infected with coughing, sneezing and also touching containment surfaces. The symptoms include flu, fever, cold, and breathing issues. To control this virus lockdown was implemented and public gatherings were banned, people started schools and offices online. The government also implemented the measures through electronic surveillance. Countries started developing technologies and measures to provide information about this pandemic. Countries are successfully coordinating and managing to adopt digital technology into the healthcare system which is successfully helping the world to fight against this virus.

Electronic means and their benefits in fighting an epidemic

The Digital revolution has changed the way of life. As of 2019, 67% of the world population is using mobile phones. And 204 billion apps were downloaded and more than 3.8 billion people use social media. Expanding digital technology can help to alleviate the impact of COVID-19. Digital Media can facilitate the pandemic strategy and respond in ways that are difficult to achieve manually. Countries have successfully planned a framework for testing, tracing, surveillance, health care, etc. with digital tech. South Korea with the help of digital technology had great initiative towards testing and tracing which was tackled digitally and which was associated with the decrease in cases. South Korea has 0.5% covid cases of deaths per 100000 people. At the point when a pandemic outbreak had begun, the principal question was at the forefront of everyone’s thoughts as if there was a medication to fix it or an antibody to forestall it. The world is currently frantic to discover approaches to moderate the spread of the Covid and to track down a viable treatment.

Benefits of using electronic means to fight the pandemic

Firstly, through electronic means, we can get factual and relevant time to time information regarding COVID-19 and we can also get relevant advice from the media. There are portals, apps and social media. Some are even regulated by the government which contains statistics, the number of cases regularly and state-wise distribution, guidelines, safety measures and government responses.

Secondly, due to the pandemic and travel restrictions, people can’t socialize and can’t go anywhere, not even to schools and colleges, so online platforms helps students and employees. As the pandemic creates a catastrophe and continues to compromise the business world, telecommuting guarantees business congruence works with social separation. In such a situation, innovations that empower and secure admittance to the information, endeavour applications, virtual gatherings, cloud conferencing, and virtual meetings. Online learning is a blessing because of technology and is probably the best way to understand friendship.

Thirdly, digital data and Artificial Intelligence can help in monitoring disease. It is successfully used to identify and predict future outbreaks and diagnosis of the disease and management by the resource provision, by maintaining records, training, and studying the disease trend, several methods were utilized to fight against Covid19. Tools were used by AI like maps, mobile payment applications, and social media for the collection of data which allows us to look into location and information about people.

Swedish healthcare developed a platform for health care workers to report data about the COVID-19 Patients and what all resources have been used by them in hospitals. Information is to track the status of hospital resources, how much it is used and how much more patients need them.

Fourthly, contact tracing is when people are recognized through wearing masks or through signals from mobile phones. South Korea also launched a tool for contract tracing by security camera footage and bank records and other real-time details of the person and even South Koreans get alert messages about the COVID-19 cases in their areas and who are infected. Even in India, people get an alert text on Arogya Setu App about the cases. Nowadays, data from applications can be easily traced by the government authorities and with the widespread testing and technical innovations, cases can easily be traced by countries.

Media is an important source of information and plays an important role in the country to spread the news. The spread of rumours about the pandemic and government is widespread and is actively shown in the media through TV or electronic means. There was social discrimination which increased during the pandemic. With unemployment, politics, and corruption in the health sector, the media helps to spread awareness about these social issues in the world. Under such a pandemic, the media has the potential to be a great tool to create awareness and this can help tackle these social issues. The media can also help to tackle irrelevant rumours and publish factual and real news of COVID-19 which will help people to fight this pandemic.

Electronics as a means to accelerate recovery rate amidst a pandemic

The Internet of Things (IoT) was implemented to reduce healthcare costs and improve treatment resources for the people. It is a digital mechanism without human involvement which helps in the medical sector. In this pandemic scenario, all countries are still looking for particular ways to fight against COVID19. This scheme helped monitor the people in quarantine, people with high risk were easily tracked. This technology was used for biometric checkups like heartbeats. The Government of India launched an app Arogya Setu which alerts about cases around areas where people are situated. It alerts the people about Covid19 cases nearby so that people can take precautions. IOT digitally captures the data and information about the patient and diseases. It is an organized method that plays a vital role during this pandemic.

In this current situation, problems are arising because tracking of people is not easy but with the concept of this scheme, people can easily trace and provide significant care so they are not at high risk. Oximeters, sanitization machines, pulsometers, and all digital biometers played an important role in the recovery of COVID-19. There is an increase in the number of rapid tests digitally to increase capacity and easy access to testing on healthcare systems and laboratories. There are COVID-19- PCR tests that are still developing and their use are still limited. Now even drive through testing facilities and self-testing kits have been accessed for tests as it takes a long time for results from laboratories. Connecting to mobiles with programmed readout using picture handling and even AI could help in the mass testing and with help of patient data. For everything to fall into place viably, normalization of information and electronic patient records are required. Connecting to phones with programmed readout using picture preparation and AI methods, could permit mass testing to be connected with geospatial and patient data quickly answered to both clinical frameworks and general wellbeing frameworks and could accelerate results. For everything to fall into place viably, normalization of information and incorporation of information into digital patient records are required.

The negligence associated with electronic means and the ways in which they can be resolved

During this situation, there is a misuse of CT scans and biomarkers which causes damage because many people are doing CT scans the moment they test positive and even People with mild symptoms and asymptomatic go with CT scans which is harmful and leads to cancer. Even a lot of people with mild symptoms go with the CRP, didimer, LDH ferritin which causes a panic reaction. These are markers of aggravation that go up in any event when you have a typical cold or tooth contamination. This doesn’t show if the illness has advanced. This ought to be done when you have a moderate disease.

Another electronic negligence about online dispute resolution has increased due to the social distancing era. This has also shifted traditional courts to online courts which helps to seek justice even during this pandemic. How to use technologies is considered by courts and implications to access justice. Hospital negligence has been a stress factor for both doctors and patients. Doctors are aware the treatment can go wrong if the burden falls on them to make treatment perfect and patients on the other hand trust doctors and healthcare professionals. It is also common for both doctors and patients to be a bit careless. However, recently the growth of technology in healthcare has led to a great initiative that reduces the chance of any kind of accident. The use of machine learning in healthcare has been making great progress to curing incidents of medical negligence. For tortious negligence, a doctor may be asked to pay compensation and damages to the injury but under Section 304A of the Indian Penal Code, 1860, he may be awarded imprisonment or fine. Doctors take defence under Sections 80 and 88 of IPC that there is always scope of misfortune in case of surgery. Parties can approach the court through FIR or a private complaint. A Private complaint is accepted by the court when the complainant has primary evidence for negligence. As the medical industry is developing there are new illnesses or diseases discovered by scientists. As every doctor can’t know everything that’s why there is this machine learning tool that can scan and present the symptoms of the disease and make recommendations based on readings.

Even in the instance of COVID-19, Medical Learning (ML) had previously discovered SARS-like Virus and was aware of the epidemic. There are many cases of medical malpractice which are due to limited knowledge like lung infection can’t be cured by a normal physician but with the help of AI technology, it can help in information and suggest a possible diagnosis. AI in healthcare is still new. There are still many medical things that need refining and problems to be fixed. The medical sector still needs to develop in a way that will not cause negligence. The solution may be regulating the medical activities and treatment in times of COVID-19, as discharge policies can be revised as per the new concept by WHO and ICMR on COVID-19. States must be involved to direct the allocation of medical assistance by creating a public portal for updating the availability of beds, ventilators, etc. and Clinical Establishments (Registrations and Regulations) Act, 2010 which was established for the corruption-related cases in the medical industry and strict penalties are also implemented.

Conclusion

The COVID-19 pandemic is still ongoing and there will be more technological advancements in digital media that will help fight against the pandemic. With the help of technological advancements, monitoring of the (Covid) curves have been made easier across the country as earlier it would have made it much harder to pursue and monitor based on the policies we have and follow in our country. In the competition to contain the spread of a profoundly contagious infection, nations that have immediately sent electronic help to work with arranging, observation, testing, contact following, isolate, and clinical administration have stayed leaders in overseeing sickness trouble. The extensive reactions of nations that have been fruitful at control and alleviation can give knowledge to nations that are yet confronting a flood of cases. In 2020, it’s an ideal opportunity to learn from parallel discussions about the utilization of electronic media for the public interest. The public is characteristically political ideas, not guaranteed. We’re far enough along to perceive that there’s enormous worth to be acquired from the successful utilization of innovation. Yet, this worth is acknowledged by working through frameworks, not by disordering them when we need them most.

The future of the public health sector is growing digitally and is accepting the importance of digital technology due to the pandemic and how planning is urgent. Technology companies who are important stakeholders in technological media should be investors in this pandemic. There should be an urgent requirement of international help and involvement of regulation and implementation on the use of digital media to manage this ongoing pandemic and future preparation for covid19 and other diseases.

This analysis is based and focused around on the utilization and in some cases misuse of technology and innovation(s) pointing directly with respect to pandemic response and reactions and purposefully avoids the frameworks systems and technological advances associated (or utilized) when second-wave hit back, some smaller and symbolic steps have also been ignored during this analysis like direct public communication, economic boost through stimulus or law enforcement through ordinances (in context of India). In the end, we come to realise and acknowledge that technology, although a very niche thing, has no limited boundaries and can be expanded beyond what we perceive it typically.

References

https://www.loc.gov/law/help/coronavirusapps/index.php#:~:text=Appropriate%20safeguards%20have%20to%20be,longer%20necessary%2C%20and%20oversight%20mechanisms%2C

ttps://www.ncbi.nlm.nih.gov/pmc/articles/PMC7496572/

https://www.nature.com/articles/s41591-020-1011-4

https://www.epw.in/engage/article/digital-surveillance-systems-combat-covid-19-harm

https://theprint.in/health/too-many-ct-scans-to-diagnose-covid-could-increase-cancer-risk-aiims-chief-warns/651550/

https://www.thehindubusinessline.com/opinion/how-technology-helps-in-the-fight-against-coronavirus/article31160578.ece

https://voxeu.org/article/economic-incentives-and-regulation-increase-covid-19-app-effectiveness

https://www.thelancet.com/journals/landig/article/PIIS2589-7500(20)30142-4/fulltext

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What is the Delta Plus variant : can it trigger the third wave of COVID in the country

By

Rachit Garg

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August 11, 2021

0

This article is written by Vanya Verma from Alliance University, Bengaluru. This article talks about the Delta Plus variant, recent reports on the variant that covers symptoms, the effectiveness of the vaccine against the variant, Indian states that have been affected by the variant and can this variant trigger the third wave in the country and finally is India prepared to fight against the variant and to tackle the third wave.

Introduction

It’s too early to say whether India is on the verge of witnessing the third wave of novel coronavirus infections because the number of daily COVID-19 cases recorded in multiple states has never dropped to a level that would ease fears even momentarily.

However, a new surge in COVID-19 cases has renewed concerns in areas like Maharashtra, which had been making headway on the pandemic front recently. When the second wave of infections hit India, Maharashtra was one of the first states to see an exceptional increase in COVID-19 cases daily.

After the dreadful second wave, the state learned a lesson and began preparing for a possible third wave early, as some health experts projected that the western state would be the first to face a surge in infections once again. Since June 22, everyday, COVID-19 instance have been on the rise in Maharashtra, as have deaths from COVID-19-related complications. To make matters worse, Maharashtra’s Health Minister, Rajesh Tope, has stated that the state has seen many cases of a new mutant COVID-19 strain known as the “Delta Plus” variation.

Regardless of weekly positivity rate or oxygen bed occupancy, the state administration has placed all administrative units under a minimum of ‘level 3’ limitations. Doctors, epidemiologists, and health experts are concerned that the Delta Plus variant may be responsible for the third wave of cases in India.

What is Delta Plus

The Delta Plus variation, like Delta, has a mutation in the virus spike protein region of RNA, which could make it more transmissible. The variant, known in India as “Delta Plus,” was originally reported by a Public Health England bulletin on June 11. It has acquired the spike protein mutation K417N, which was also found in the Beta variant first identified in South Africa.

The Indian Council of Medical Research (ICMR) to release vaccine efficacy against Delta Plus variation soon. ICMR Chief Dr Balram Bhargava announced that the results of the vaccination effectiveness trial against the Delta Plus variant would be released soon.

He further said, “Delta Plus has been found in 12 nations; 48 cases have been found in India, but they are quite localised. This virus has been identified and is in the process of being cultivated. Laboratory studies to assess the vaccine’s effectiveness are ongoing, with findings expected in seven to ten days.

Experts blamed a triple mutant of the novel coronavirus of the B.1.617.2 lineage, which was discovered in India at the end of last year, in part for the second wave of COVID-19 that hit India earlier this year. On May 31, 2021, the World Health Organization (WTO) designated it as Delta.

Later, the highly transmissible Sars-CoV-2 variation transformed into the AY.1 lineage’s Delta Plus. According to scientists, there is no urgent cause for concern because the disease’s prevalence in the country is still minimal.

The spike protein of the novel Delta Plus strain possesses a K417N mutation, which has been formally termed B.1.617.2.1. The National Chemical Laboratory (CSIR-NCL) is currently investigating the Maharashtra specimens Ratnagiri and Sindhudurg for the occurrence of the Delta Plus variant. In India, these two locations have the largest proportion of active infections.

Symptoms of Delta Plus variant

The newest variant is still being researched, and scientists are trying to figure out what distinguishes COVID-19 symptoms from those caused by the Delta Plus mutant. Apart from the usual dry cough, fever, tiredness, aches and pains, skin rashes, toes and fingers discolouration, sore throat, conjunctivitis, loss of taste and smell, diarrhoea, and headache, chest pain, breathlessness, shortness of breath, and speech loss, preliminary studies appear to suggest that Delta Plus patients also experienced stomach ache, nausea, appetite loss, vomiting, joint pains, and hives hearing impairment, etc.

The Delta Plus variant of COVID-19 has a greater affinity for lung tissues than other strains, according to Dr N K Arora, Chairman of the COVID-19 working group under the National Technical Advisory Group on Immunization (NTAGI), but this does not mean it will cause severe disease or be more transmissible.

Arora told the Press Trust of India (PTI), “Delta Plus has a higher affinity for the mucosal lining of the lungs than other variations, but it is unclear whether this causes injury or not. It also doesn’t imply that this variety will produce more severe sickness or be more contagious”.

Resistant to monoclonal antibodies

Experts are currently investigating how this unique variant impacts sickness progression and whether it causes severe COVID-19 infection. Preliminary findings suggest, however, that this unique mutation of COVID-19 may be resistant to monoclonal antibody cocktail therapies. The treatment consists of a combination of two drugs: casirivimab and imdevimab, which was recently approved in India.

Another potential problem that medical professionals are still looking into is whether the new version would be able to overcome the protection provided by both immunizations and prior COVID-19 infections.

Effectiveness of vaccines on Delta Plus variant

Vaccines have yet to be tested on the Delta Plus variant, but Dr. Scott Gottlieb, the former commissioner of the Food and Drug Administration (FDA), was quoted on cnbc.com as saying that vaccines appear to be successful.

The mRNA vaccine appears to be very efficient against the Delta variation, with an 88 per cent success rate. He added that the viral vector vaccines from Johnson & Johnson and AstraZeneca appear to be roughly 60% effective. mRNA technology is used in the vaccines developed by Moderna and Pfizer/BioNTech.

According to the Study, the Pfizer and AstraZeneca vaccinations were only 33 per cent effective against symptomatic cases of the Delta variation three weeks after the first dosage, compared to 50 per cent effective for the Alpha variant.

Covaxin also “demonstrates a protective response” against the Delta and Beta versions, according to Bharat Biotech. This was confirmed by a study conducted by the National Institute of Virology in Pune, the Indian Council of Medical Research, and Bharat Biotech.

However, a research of 63 people conducted by AIIMS (All India Institute of Medical Sciences) found that neither Covishield nor Covaxin were effective against the variation. The ‘Delta Plus’ variation of COVID-19, which is more lethal than the ‘Delta’ variant, is predicted to cause a third wave of the pandemic in India. The second COVID wave, which wrecked the country’s healthcare infrastructure, was largely caused by the Delta strain of the coronavirus. And now, as experts and policymakers discuss the likelihood of a third wave and what might cause it, Delta Plus is emerging as a risky gamble for both healthcare specialists and legislators.

Delta, the ‘most transmissible’ COVID-19 variant identified so far : WHO

Meanwhile, the WHO stated that the Delta form of COVID-19, which has been found in at least 85 countries, is the “most transmissible” of the variants discovered so far and is spreading rapidly among unvaccinated populations.

“I’m aware that the Delta variant is causing a lot of anxiety around the world, and the WHO is concerned as well. Delta is the most transmissible of the variants discovered so far, having been found in at least 85 countries and spreading rapidly among unvaccinated populations”, according to WHO Director-General Tedros Adhanom Ghebreyesus.

Has the third wave begun

The worry of a third wave of wreaking devastation in the country has consumed our minds, especially given how reasonably effective vaccination campaigns have done little to prevent a COVID-19 outbreak in Europe. Top experts have raised alarm about a third wave breakout in the West, speculating that the Delta strain may be to blame for the resurgence of infections.

Professor Adam Finn, who advises the Joint Committee on Vaccination and Immunisation (JCVI), told Radio 4’s Today programme that the third wave has already begun in the UK and that the country is now in a tight race between vaccines and the Delta variant, which was first found in India.

“It’s going up; we may be a little optimistic that it’s not going up much faster, but it’s going up anyway, so this third wave is underway,” Finn said. This makes it clear that India, with just roughly 31 crore adults half vaccinated, cannot succumb to pandemic weariness at this time, as the third wave is expected to be significantly more devastating, according to specialists.

Views of the experts

If India unlocks completely by July 15, a team of academics from the Indian Institute of Technology – Kanpur (IIT-K) constructed a prediction model that predicts the third wave will peak between September and October 2021.

In the worst-case scenario, daily COVID-19 cases during the third wave might reach more than five lakh in September, according to the IIT Kanpur experts. This could be due to the introduction of a new, more virulent/transmissible strain of SARS-CoV-2, the virus that causes the disease, scientists suggested.

The Susceptible Infected Recovered (SIR) epidemiological model, for example, does not take into account the effect of immunizations, which could help break the transmission chain. When it comes to the novel SARS-CoV-2 strains, the Delta Plus is the only one that is now emerging as a “variant of concern” (and its lineages).

Can the Delta Plus variant trigger another wave

The Delta Plus variant was created by a mutation in the B.1.617.2, or ‘Delta’ variety, which was first discovered in India and is thought to be one of the drivers of the country’s devastating second wave of infections. It is a sub-lineage of the Delta variation (B.1.617.2.1 or AY.1) that has acquired the ‘K417N’ spike protein mutation. The mutation K417N has piqued curiosity because it is found in the Beta variety (B.1.351 lineage), which has been linked to immunological evasion, according to the Union Health Ministry.

The Indian SARS-CoV-2 Genomic Consortia (INSACOG), according to the Health Ministry, has designated the Delta Plus strain as a “variant of concern” due to characteristics such as increased transmissibility, stronger binding to lung cell receptors, and a potential reduction in monoclonal antibody response or antibody cocktail treatment used to treat mild to moderate COVID-19 cases in India.

The World Health Organization, on the other hand, stated: “For the time being, this variant (Delta Plus) does not appear to be prevalent, accounting for only a small fraction of Delta sequences. Delta and other circulating variants of concern continue to pose a greater public health risk due to increased transmission.”

“The mutation itself may not lead to the third wave in India — it also depends on COVID-appropriate behaviour,” Tarun Bhatnagar, a scientist at the Indian Council for Medical Research (ICMR), told Reuters, “but it could be one of the reasons.”

The variant has also been seen in the United Kingdom, the United States, Portugal, Switzerland, Poland, Japan, Nepal, China, and Russia, to name a few. However, no country has yet expressed concern about a third wave as a result of the strain.

Even in India, there have been roughly 50 cases documented (including minors), with three patients dying — one in Maharashtra (an octogenarian with comorbidities) and two in Madhya Pradesh (both unvaccinated).

If and when the third wave arrives in India, central government district public health officer Dr. Abir Mazumdar told Moneycontrol: “Considering all expert opinions and studies in India and elsewhere, it is unlikely that this sub-strain could wreak havoc in a possible forthcoming third wave.”

“When we look at the data showing Delta Plus variation prevalence as the primary source of an ongoing wave in the nine other nations, it is still minimal. “I’d rather attribute the widespread disdain for COVID-19 acceptable behaviour to complacency and ignorance as to the fundamental cause of the third wave,” Mazumdar said.

Will the third wave affect children more

Concerns that more youngsters would develop COVID-19 during the third wave grew after coronavirus cases in the 0-9 and 10-19 age groups increased dramatically during the second wave.

Since then, several government officials and health experts have expressed concern that the third wave may disproportionately harm youngsters. Many others, on the other hand, have dismissed this evaluation as “unfounded assertions.”

“The Indian Academy of Paediatrics has said unequivocally that this variation is unlikely to disproportionately affect children in a third wave scenario. The Union Health Ministry, on the other hand, is taking a cautious approach, especially because such facilities aren’t as reliable as India’s existing adult hospital care facilities,” Mazumdar added.

According to a recent serological survey undertaken by the All India Institute of Medical Sciences (AIIMS), the upcoming wave of COVID-19 is unlikely to disproportionately affect children aged two years and up.

Seroprevalence was discovered in 55.7 per cent of samples obtained from persons aged 2 to 17 years, and in 63.5 per cent of samples collected from adults, according to data gathered by AIIMS between March 15 and June 10, 2021, from over 4,500 participants across four states.

According to the AIIMS study, “there was no statistically significant difference in prevalence between adults and children.” Though child health experts say there’s no need to panic, it’s still a good idea to be prepared, especially given India’s 2-17 age group is still unvaccinated. With that in mind, the Ministry of Health issued a circular on June 5 ordering all hospitals to set aside 20% of their beds for children.

States in India with Delta Plus variant cases

According to the Union Health Ministry, the Delta Plus variant of COVID-19, which is a sub-lineage of the highly transmissible Delta variant that was a major contributor to the second wave of infections that peaked in April-May, has been detected in 48 samples from ten states out of 45,000 samples sequenced so far in the country. Maharashtra has the most examples of this variation, with 20, followed by Tamil Nadu (9), Madhya Pradesh (8), Kerala (3), and two each from Punjab and Gujarat.

In India, four people have died as a result of this new variant. Tamil Nadu is a state in India. According to the state health department, the Delta Plus form caused the first death on Saturday, with a person from Madurai succumbing to it. The death of an 80-year-old woman in the Ratnagiri area on Friday marked Maharashtra’s first mortality from the Delta Plus variety. So far, two similar deaths have been documented in Madhya Pradesh.

“Of the 48 instances of Delta Plus in ten states, Maharashtra had 20, followed by Tamil Nadu (9), and Madhya Pradesh (7),” said Dr Sujeet Kumar Singh, Director, National Centre for Disease Control (NCDC). He did clarify, however, that there was no proof at the time that the Delta Plus variation was much more harmful than the Delt variant.

The Delta Plus version of the coronavirus, also known as B.1.617.2.1, was classified as a Variant of Concern (VOC) by the Health Ministry, and states were ordered to adopt rapid containment measures in clusters where it had been found. There are concerns that Delta Plus would cause another wave of illnesses in India, which has only recently recovered from the world’s worst outbreak.

The classification came after the centre was informed by INSACOG, a consortium of 28 Health Ministry laboratories involved in genome sequencing, that the Delta Plus variant has three concerning characteristics: increased transmissibility, stronger binding in lung cell receptors, and a potential reduction in monoclonal antibody response.

Status of Indian States affected with Delta Plus variant cases so far

Tamil Nadu

Tamil Nadu has documented nine such occurrences, with the first death being on June 30, 2021, when a person from Madurai succumbed to it. Minister for Medical and Family Welfare, Ma Subramanian stated that “There are 14 centres in India that identify Delta Plus variants, and all of them are under the federal government; they are being carried out following ICMR recommendations. To conduct those tests in our state, we need specific permissions. We’ve begun the process of obtaining those permits, and we intend to open a testing centre in Chennai. This is being done to eliminate delays in receiving results, and it will cost approximately two crore rupees. We’ve found a handful of locations, and we’ll be able to open the centre in Chennai in another 20-25 days.”

Maharashtra

Twenty COVID instances of the Delta Plus-type have been reported in Maharashtra, with one death. On Friday, Maharashtra, which has 20 instances of the Delta Plus type, reported its first death. On June 13, an 80-year-old woman died in Ratnagiri district, officials said. On June 20, they received formal notification that she was afflicted with the Delta Plus variety. Ozarkhol in Sangameshwar taluka, where she lived, was declared a containment zone earlier this week, more than 20 days after she tested positive. Only after it was discovered that she had the Delta Plus variant did contact tracing begin.

“We started taking containment measures as soon as we found out she was infected with the Delta Plus variant,” a district official said.

The state government stated in a statement that the Delta Plus version has become a source of concern (VOC). As a result, regardless of weekly positive rate or oxygen bed occupancy, all administrative units will be subjected to a minimum of level 3 restrictions, it stated.

Haryana

2 Delta Plus cases in Punjab and 1 in Haryana have been reported. According to genome sequencing results from the Indian SARS-CoV2-Genomics Consortium, the Delta Plus variation has been detected in two COVID samples from Punjab and one from Haryana, according to the Ministry of Health and Family Welfare (MoH & FW) (INSACOG).

Both states have been ordered by the Union ministry to begin rapid containment measures, including “preventing gatherings” and “intermingling of persons.”

Gujarat

Gujarat had two Delta Plus cases, both of which were successfully recovered. The Gujarat government announced that no new Delta Plus variant coronavirus infections had been discovered in the state and that the two patients who had been infected with the variant in April had recovered. “The Delta Plus variation was detected in two people in April,” said Manoj Aggarwal, Additional Chief Secretary, Health, in a press conference in Gandhinagar. One patient was from Surat, while the other was from Vadodara, and they both recovered from the infection.

The official stated that there were no new occurrences of the Delta Plus variation at this time. Aggarwal, on the other hand, stated that the state administration has been put on high alert to deal with the crisis and that testing is being done to discover this variety.

Madhya Pradesh

Eight Delta Plus variant cases have been reported in Madhya Pradesh, with two deaths. Two additional COVID-19 patients were infected with the Delta Plus strain of the virus, bringing the total number of people infected with the variation to eight in Madhya Pradesh, two of whom died.

A 30-year-old guy from Bhopal was one of the instances discovered. “I only had a minor fever,” he told The Indian Express. Because my entire family, including my parents, wife, and two children, had suffered symptoms and recovered in home isolation, I was immediately examined and admitted. I was placed in home quarantine for ten days after being released from the hospital. I only discovered today that I was positive for the Delta Plus variant. The COVID-19 vaccine had not been administered to the man.

Kerala

In two Kerala districts, three occurrences of the Delta Plus variation were discovered in samples. Officials said that samples gathered from two Kerala districts, Palakkad and Pathanamthitta, revealed at least three instances of the SARS-CoV-2 Delta Plus variant. A four-year-old youngster from the district’s Kadapra panchayat was detected infected with the novel Delta-plus type, according to Pathanamthitta district collector Dr Narasimhugari T L Reddy.

Karnataka

In Karnataka, Mysore reported the first instance of the Delta Plus form of COVID-19. According to Health Minister K Sudhakar, Mysore has reported the first incidence of the Delta Plus strain of COVID-19 in Karnataka. The infected person is asymptomatic, and none of his contacts has contracted the virus.

“In Mysuru, we have isolated one patient who is infected with the Delta Plus form, but he is asymptomatic, and none of his primary or secondary contacts is afflicted. Sudhakar told reporters, “That’s a fantastic sign.”

Conclusion

If we talk about whether India is prepared for the fight against Delta Plus variant and the third wave, the Centre has not yet published any changes to its health advice, but it has asked all states and Union Territories to follow COVID-19 appropriate behaviour and increase efforts to closely monitor the Delta Plus strain.

Prime Minister Narendra Modi has asked that data on COVID-19 transmission among children and youth be collected by district magistrates and field officers in ten states for further research.

The states have also implemented the sentinel surveillance system, in which 15 samples of COVID-positive people are routinely sent to designated regional genome sequencing laboratories (RGSLs) by five laboratories and five tertiary care hospitals identified as sentinel sites at the request of the Union Health Ministry.

A study will also be conducted by the ICMR and the National Institute of Virology (NIV) in Pune to determine the potency of the ‘Delta Plus’ variation.

Apart from that, if the third wave occurs, the Delhi government plans to send a special task force to protect youngsters. In preparation for the third wave, Chief Minister Arvind Kejriwal has pushed for the establishment of appropriate beds, the provision of liquid medical oxygen, and the provision of vital medicines.

In Karnataka, identical paediatric COVID-19 care centres, as well as orphan rehabilitation centres, would be established in all districts.

The Brihanmumbai Municipal Corporation (BMC), Mumbai’s civic government, is also establishing paediatric COVID-19 care facilities, as well as a crèche network for children whose parents have COVID-19 and are seeking treatment in a hospital. The Maharashtra government is working on a dashboard that would provide real-time updates on COVID-19 patients, as well as bed and oxygen availability. The state’s oxygen output is being expanded from 1,200 MT per day to 3,000 MT per day.

Mamata Banerjee, the Chief Minister of West Bengal, has declared a priority vaccination programme for mothers of children under the age of 12. She’s also striving to improve the state’s health system in anticipation of a third wave. It is planned to open 1,300 paediatric intensive care units (ICUs) and 350 sick neonatal care units (SNCUs) for the purpose. In addition, 10,000 general beds for paediatric and female patients will be added to all government-run hospitals.

The Tamil Nadu government has begun educating paediatricians about COVID-19 treatment protocols and management in preparation for a probable third wave that would disproportionately affect youngsters. In paediatric wards, infrastructure is also being improved.

References

https://indianexpress.com/article/india/delta-plus-variant-everything-you-need-to-know-7376896/

https://www.indiatimes.com/explainers/news/what-is-delta-plus-variant-can-it-trigger-a-third-wave-of-COVID-pandemic-in-india-544458.html

https://www.news18.com/news/india/delta-plus-variant-explained-what-is-it-why-it-may-trigger-a-third-COVID-wave-in-maharashtra-3878132.html

https://www.india.com/video-gallery/coronavirus-india-delta-plus-variant-explained-symptoms-effectiveness-on-vaccines-can-it-trigger-a-third-COVID-wave-4762319/

https://www.india.com/health/delta-plus-variant-too-dangerous-for-lungs-tissues-COVID-third-wave-alert-4773567/

https://news.abplive.com/health/corona-delta-plus-variant-explained-experts-suggest-may-trigger-third-COVID-19-wave-1465101

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Registering geographical indications : is it beneficial

By

Shoronya Banerjee

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August 11, 2021

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IPR globe_cmyk — Image Source: https://bit.ly/2ScewGU

This article has been written by Priyanka Saraswat, pursuing the Diploma in Intellectual Property, Media and Entertainment Laws from LawSikho.

Table of Contents

Introduction

What do Darjeeling tea and champagne have in common? Probably nothing other than being named after the places they originate from. They enjoy a global monopoly thanks to this reference to their birth regions. The names suggest and convey to the consumer information about its taste, aroma, quality, and the overall experience one is about to obtain from it. That’s all in a day’s work for a geographical indication (GI) tag. Products such as Scotch whisky, Swiss watches, and Parmesan Reggiano cheese can legally create in the minds of the consumer the idea that there is no other place that can provide them with the authenticity and quality that their place of origin can, thanks to this tag.

A G.I. tag is an indicator that identifies the originating point or manufacturing location of agricultural, natural, or manufactured goods where the quality, reputation, or any other important characteristic can be essentially attributed to its geographical origins. From the time the Act came into force in 2003, there have been a total of 370 GIs registered in India, which is relatively a very small number compared to the Trademarks that get registered every year. This article attempts to simplify the registration process for you and asks whether registration is even beneficial to producers in the first place, focusing on some of the successful and not-so-successful tags granted.

Geographical indication : a brief overview

When the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) was signed in 1994, safeguarding products and goods based on their regional specifications became another obligation of the member states. Based on this, India passed its sui generis act called the Geographical Indication of Goods Act in 1999. The need for specific legislation also arose due to the Basmati RiceTec controversy in the 1990s, especially because unless the product is protected by G.I. in the country of origin, other countries are not obligated to reciprocally protect the claim under the TRIPS Agreement.

According to the Act, any agricultural, natural, or manufactured product originating from a definite geographical territory that can be attributed to its production or processing can obtain a G.I. tag for that region, and resultantly any such goods from that region can utilize the tag. The Geographical Indication Rights prevent third parties and unauthorized users from using the tag in products that do not conform to the applicable standards.

If a trademark tells you who made a certain product, a geographical indication helps identify the region it originates from. The region imbues to the product a certain specific value emerging from the cultural as well as ecological advantages that can be economically exploited. However, as opposed to other intellectual property rights, a GI is not the property of an individual or a company but a public property that allows every registered user, be it a producer or a manufacturer, in that specific region to use the GI tag as long as the quality of the product can be accredited to the said region.

The requirement for GI legislation is twofold: first, it is meant to safeguard heritage crafts and historically grown natural products of the country from counterfeit products that harm their reputation; second, the internationally recognized standing of a product can help in the increase of exports and give the country an economic boost.

Benefits of obtaining the tag

Every region has something unique and exclusive to offer and the G.I. tag honours and recognises these distinctive identity markers of these products and methods of production. There are plenty good reasons to opt for one such as maximization of the export value and safeguarding cultural heritage, amongst others:

Branding: The regional specificity becomes a brand in itself acting as a marketing tactic. It also helps in the elimination of intermediaries leading to higher profits for the producers of the heritage art and goods.
Proof of quality: A GI tag is a guarantee of premium quality of the product coming from its association to a certain region and the history of that product in that territory, especially as it is recognized by the national government of the country of origin (and in some cases, multiple governments all over the world). This in turn increases the possible income in the market both from the premium quality and the heritage attached to it.
Authenticity: A similar superior quality can be imitated by the means of the power loom and other industrial methods, which acts as a threat to the uniqueness of the handcrafted material but the presence of a GI tag preserves the essence derived from centuries of practice and honing the craft by giving the product a market edge over the imitations.
Cultural protection: The products that receive a GI tag are rooted in the heritage of the place whether they are natural or manufactured goods, and the tag helps preserve the traditional methods of production helping protect the local culture and heritage. Many crafts that had been dying from the lack of patronage have been revived post being awarded the tag from the awareness and publicity created resultantly.
Increase in tourism: There’s a direct connection between the global reputation gained from the protection of the GI tag and the increase in tourism based on the global demand for these products.
Economic boost: The economic value of a product with a GI tag attached is higher than a regular product due to the promise of quality attached to it and it also helps boost the demand of the product in the market.

Process of registration : is it difficult?

Registration of geographical indications is not mandatory just like other intellectual property rights such as copyright and trademark; it only affords the producers and proprietors better legal protection in case of infringement.

Any association of persons, producers, organisations, or authority established by or under the law can file for registration as a registered proprietor. Whereas any producer of the said goods can apply to become an authorized user of the GI tag by applying in writing and paying a prescribed fee. It is a fairly easy process. Generally, the application can be filed either by a legal practitioner or a registered agent.

Image courtesy: IP India website

Step 1 : the application

The first and foremost thing is to check whether the product falls under the prescribed definition as per Section 2(1)(e) of the Act. Additionally, also cross-check that GI does not fall under the prohibited category as per Section 9 of the Act. (Please note that the prohibited category refers to the tag or the indicator to be registered for identification of the goods and not the goods themselves). Once that has been confirmed, an application can be filed as per Section 11 of the Act which prescribes that the application, made in triplicate, should contain:

A statement of the case is made,
Class of goods (as per the Fourth Schedule of the G.I. Rules),
Geographical map of the territory (three certified copies),
Description of the appearance of the G.I. – whether a wordmark, or figurative element, or both,
Details of the applicant.

The application should be sent to the G.I. Registry in Chennai, signed either by the applicant or by the agent filing it.

Step 2 : scrutiny and examination

The Registrar will examine the application for any deficiencies or irregularities that, if any, need to be corrected within a month of being communicated to the applicant. A consultative panel of subject matter experts will assess the claims made and ascertain the correctness of the same based on which an examination report is issued.

Step 3 : objections or acceptance

If the Registrar has any objections concerning the application, the said objections will be communicated and the applicant will have to show cause or apply for a hearing within two months of receiving the notice. The Registrar will make a final decision on the same, upon which, if required the applicant can request an appeal within a month. If the application is accepted, within three months of the communication of such acceptance, the same shall be published in the Geographical Indications Journal.

Step 4 : opposition

Anyone opposed to the application can file a notice of opposition within three months of the application being published in the journal. A copy of any such notice will be communicated to the applicant who shall file their counter statement within two months. In case the applicant does not file a counter-statement, the application will be deemed abandoned. The evidence can be led thereafter and the date of hearing fixed.

Step 5 : registration

Depending on the result of the hearing on the opposite, the application shall be allowed or refused. In case of refusal, the applicant has the option of appeal to the appellate authority, which for GI is the High Court after the abolition of IPAB.

If the application is allowed, registration will be granted to the GI and the particulars shall be entered into Part A of the Register. A registration certificate will be issued to the applicant and the registration shall last for a term of 10 years from the date of filing of the application after which a renewal application needs to be made along with the payment of a renewal fee.

Step 6 : authorised users

Any person claiming to be a manufacturer or producer of the protected goods needs to file to be registered as an Authorized User under Section 17 of the Act, which is mandatory for the purpose of utilizing the GI tag granted. The process of application is the same as that for the application for the tag. Once granted, the particulars of the Authorized User are entered into Part B of the Register. The authorization is granted for a period of 10 years or till the date of the expiration of the GI tag, whichever is earlier.

Restrictions

A single person cannot apply for the GI registration; the application can only be filed by an association of producers, an organization or authority established by or under the law. A person can nonetheless apply to be a registered or authorised user of a registered tag.
The right provided under this act is only a positive right and therefore the owner of a GI tag cannot prevent someone from making a product by incorporating the same techniques or procedures as set out in the standards for that specific indication.
A GI tag being a public property, cannot be assigned, licensed, or otherwise transmitted like other private intellectual properties can be. However, the right of an authorized user can devolve onto an heir by succession in the title. The financial advantage of the GI tag, therefore, is only the economic boost it provides to the producer community.
A product grown or manufactured in a region afforded GI protection can still be considered infringing goods if not produced by an authorized user or according to the standards set out in the code of practice for that specific geographical indication.

Success stories and those of failure

When fruitfully managed the GI tags can become global success stories such as the world-renowned Darjeeling tea, but there have also been instances where even the GI tag could not save the community that depended upon the protected craft.

Chanderi Sarees, Madhya Pradesh

An estimated 60 percent of this small town in Madhya Pradesh are dependent on the handloom weaving industry for creating these sarees. The craft, which was given royal patronage once upon a time, began facing a decline in demand due to the high competition from the power-loom products and the difficulty in distinguishing genuine Chanderi craft and non-Chanderi products. The consequential loss of jobs led to the younger generation migrating out to look for work. The application for registration as a GI was made by the Chanderi Development Foundation in 2005. Which after large-scale steps taken to utilize the tag post-registration including marketing, creation of e-commerce portal, conducting sensitization workshop, free distribution of the GI logo, led to bulk orders such as stoles for athletes and merchandising during the Commonwealth Games and tie-up with brands such as FabIndia.

Venkatagiri Sarees, Andhra Pradesh

A similar product hailing from the Nellore District of Andhra Pradesh is the lightweight fine cotton Venkatagiri saree, with close to 3 centuries of history to boost for. The region and its craft faced the same difficulties and competition as their Madhya Pradesh counterpart before opting to register for a GI tag. However, the post-registration story is poles apart. The products were promoted by the Andhra Pradesh State Handloom Weavers Cooperative Society and close to 400 new designs were introduced but the lack of proper publicity and marketing for the authentic distinctive craft and the blatant copying of the designs by textile companies has led to no advantage coming to the traditional weavers. The actions to be taken post attaining the tag such as strict monitoring and quality control, marketing strategies, publicity, have not been paid attention to leading to a decline in the craft.

Both these products received the tag however one was successful in economically exploiting the advantage while the other dwindled from the lack of care and attention. The fact of the matter is that obtaining the GI tag is only half the battle, utilizing it to safeguard your products against infringements and counterfeits is another uphill climb.

Why is the GI tag not as popular in India?

A majority of the producers and manufacturers of traditional crafts, agricultural goods, and natural products come from marginalised socio-economic classes and rural regions that do not have access to legal support and knowledge. Organising themselves in associations to apply for geographical indications is a difficult and tedious task. Additionally, the lack of information regarding the application process, or even knowledge of its existence in the first place is another reason why many communities do not opt for it.
In a country that relies on oral history more than documentation, the strict documentary proof of origin required for the purpose of registration is a formidable hurdle. This has been the case for the traditional rice wine of Assam, ‘Judima’ made by the Dimasa tribe, for which gathering documentary proof has become a major roadblock.
Instead of focusing on products that need protection for the high volume of export and their standing in the global market or the heritage crafts and products, India has awarded the G.I. tag to certain goods that have nothing much to gain commercially from the tag such as the Tirupati Balaji laddoos.
Additionally, there might be products that are not legally allowed to be transported such as Goan Feni, which defeats the export advantages of the tag. A simultaneous amendment and revamp of laws around the protected products becomes a requirement but is often not paid attention to.
While the prescribed fees for the application under the G.I. Act, 1999 is Rs. 5,000 and the additional paperwork can cost a couple of thousands more, there are certain additional hidden costs attached to the process for the purpose of continued protection. In the case of Pashmina, it cost the Jammu & Kashmir government a massive sum of 44 crores to set up the Pashmina Testing and Quality Certification Centre for protecting their intellectual property. Footing such hefty bills is not possible for many small communities of artisans and craftsmen.
While the GI tag helps boost exports and increase the income from the sale of such exotic items in foreign markets, not all producers are involved in direct exports of the product. Additionally, the products awarded the tag, especially in the case of handicrafts, are based on meticulous handiworks the process of which are safeguarded in the GI. However, the machine-made alternatives of such products that flood the market are cheaper and therefore preferred by consumers that give greater importance to price than to authenticity.
Obtaining the tag is not enough. Under the Act, all producers wishing to utilize the tag need to register themselves as authorized users, which is another complete and long process in itself. In the case of Kanchipuram Silk sarees, the regional manufacturers applied for registration as authorised users only after four years of the tag being awarded.

The Tripartite bid for registration of Basmati

India has filed applications for the recognition and protection of Certification Mark in 19 foreign jurisdictions while it has been registered in four countries, namely, UK, Kenya, New Zealand, and South Africa. Basmati is long-grain aromatic rice produced particularly in the Indo-Gangetic plains for which GI has been granted in India to 7 states (Punjab, Himachal Pradesh, Haryana, Delhi, Uttarakhand, Jammu & Kashmir and Uttar Pradesh) in 2015 after an order by the Intellectual Property Appellate Board (IPAB).

India’s application for exclusive GI tag in EU’s Council on Quality Schemes for Agricultural and Foodstuff has been opposed by Pakistan in December 2020, though India states that with our joint heritage and common history over rice, Pakistan is also entitled to secure its trade and export. Earlier this year, Nepal also threw its hat in the ring by opposing India’s application. While Pakistan’s bid has some standing with their domestic GI tag for Pakistani Basmati, Nepal doesn’t have a GI regime in place and still protects them under their trademark laws (though GI status is not a prerequisite for filing opposition). Additionally, some reports claim that Nepal imports almost all its Basmati rice from India.

The process will take another few months as under the framework the parties will now be engaging in consultation with the Council trying to reach an agreement. If no agreement is reached, the Council will then hear the matter accordingly and decide.

Conclusion

GI is one of its kinds of protection afforded to producers and manufacturers of historical crafts and goods but it’s not without its follies. The legislation and statutes in place are far from perfect even after being in place for almost two decades. This is why both its reputation and usefulness are minuscule at best.

This, however, does not mean that opting for a GI tag is a wasteful act. The law cannot be done away with because it will leave vulnerable communities with a void that cannot be filled with any of the existing laws. A legal safeguard, however lacking, is always an advantage to have in your corner, and with the popularity of it slowly on a rise, there are greater possibilities of the law changing into a better and more beneficial one. The GI tagged products require the support of government mechanisms for protection and publicity once the tag has been granted with, an increase in government-aided sale systems in major markets, easier ways to prove authenticity, and means for better marketing, being some of the suggested steps.

References

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Market manipulation under the guise of corporate governance

By

Diganth Raj Sehgal

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August 11, 2021

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This article is written by Raslin Saluja, from KIIT School of Law, Bhubaneswar. This is an exhaustive article on the role of auditors and independent directors in causing and preventing market manipulation.

Table of Contents

Introduction

A lot happens under the guise of corporate governance which only becomes a reality and comes to the forefront when the failure becomes too big to hide. Governance failures are often a combined result of various entities involved and mostly happen with the consent or act of negligence of the Board. For this purpose, there are various intermediaries in companies who are also called gatekeepers such as auditors, rating agencies, independent directors, etc. They are present to have checks and balances on the corporate power to prevent any favors to company managements and not completely rely on company disclosures only.

However, the corporate governance assessment is not easy. Despite the country having regular compliance in the letter with the law, the recent cases of failure have made us question the effectiveness of the models applied and the functioning of the gatekeepers in terms of the role of the boards, audit committee, the independent directors, etc. These concerns also focus on the failure of these gatekeepers to fulfill their responsibilities, since they solely rely on the disclosures made by the company, they fail to identify any conflict of interest between the stakeholders and the management of the company in pursuance of the transactions taking place. It also highlights the fact that having a board composed of qualified and experienced directors/ audit committees may not always be a sufficient deterrence to bad governance when they are a part of such manipulation.

Need for strong corporate governance

Investments both, domestic or foreign has an immense role to play in the growth of the economy. However, continuous financial frauds give a bad image to the company as well as the country. In the light of such events, corporate governance has gained prominence. Infamous frauds such as Enron, WorldCom, Satyam, IL&FS, etc. highlight the importance of strong corporate governance. All the business begins on trust and the information disclosed, however often organizations resort to window dressing or manipulation of the data of the company which does not indicate the true position of the company. Hence, a body like an independent audit committee is often relied upon to keep in check such unscrupulous activities. The presence of independent auditors goes a long way in ensuring investor trust.

However, these frauds suggest that building a corporate governance index in India has not proved to be reliable because of its dependence on qualitative disclosures by the company itself or by relying on factors that are not worth reliable.

In India, according to the PwC India Family Business Survey 2019, over 73% of businesses are family-owned and nearly all are run by families and in 2020, NIFTY 50 has 31 family-owned companies. Hence, the ownership concentration and agency problem, the low gap between management and owners in India is one of the constructs around which measures of governance need to be woven. A high concentration of ownership and its consequent reflection in management creates discretion in the hands of owners which determines the quality, manner, and quantification of financial and operating results. On the other hand, such powers do create opportunities for diversion of financial resources of the company for personal use or keeping severe liabilities off the books.

Role of the audit team in corporate governance

The audit team has a very prominent position in the working of a governance mechanism to ensure that a company produces relevant information and disclosures along with credible authentic data that can be used to assess the company’s performance. They help in presenting the true financial picture of the company and are also a part of the board of directors who are responsible for formulating strategies towards effective performance yielding of the company. They help in maintaining transparency about the company and contribute to improving the financial health of the company.

They are viewed as a significant element because they are entrusted with powers to carry out monitoring processes and keep in check the faulty conduct. Companies Act, 2013 has made rules regarding the presence of an independent audit committee more stringent to curb financial fraud. It is believed that having an independent team may ensure the reliability of the financial reporting process keeping a check on manipulative, self-centered activities of other members of the company. The team with their regular meetings would reduce information asymmetry and prevent agency problems by providing timely and fair information to the investors. They can keep a check on financial frauds, misappropriation of funds, and losses to the company.

Role of independent directors in corporate governance

As for the independent directors, they improve corporate credibility and governance standards. They function as a watchdog and play a major role in risk management. The fact that they are independent of the company’s management and act as trustees for the shareholders implies their obligation to be fully aware of the company’s conduct at all times. The guidelines, roles and functions and duties and, etc. are broadly set out in Schedule IV of the Companies Act, 2013. They play various roles towards the shareholders and stakeholders providing transparency, taking beneficial decisions in their interest, upholding their rights and ensuring their welfare, reviewing related party transactions, and ensuring the efficiency of whistleblowers.

The appointment is mandatory in the nomination, remuneration, investor relations committee, and audit committee for ensuring corporate governance compliance. They have fiduciary duties, duty to act diligently and in good faith, and address all the concerns relevant to the company. Independent directors play two major roles one is monitors of controlling shareholders that work on behalf of minority shareholders; second as the brain trust, consultant, or strategic advisor to the controlling shareholder. Under the monitoring role, independent directors are supposed to help and address corporate governance concerns of controlled entities.

Frauds and market manipulation

Earlier there have been a few cases in India such as that of Satyam, Sahara, Saradha, etc. as well as abroad such as Enron Corporation, Global Crossing, WorldCom, Adelphia, Tyco, etc where frauds were committed and investors cheated. At the time, they were such that they were not identified from financial statements. Emphasizing the need for an independent audit committee, asserted that one of the factors contributing to the Satyam fraud was weak independent directors and the audit committee. Had the audit committee comprised a greater number of independent directors, the financial accounts might not have been manipulated for so long.

Auditing in India is especially required as there are many family-run businesses as mentioned earlier, which need to reflect public interest and trust. To go through a few examples,

The Satyam scandal

Satyam Computer Services (2018) caused a great deal of market uproar after its chairman confessed to manipulating the company’s accounts. It was stated that the board of directors and the auditors allegedly knew nothing about the scam, however, it seemed more as if the audit firm had intentionally chosen to not abide by the accounting standards and failed to fulfill its duties as per the acceptable standards. Later in 2018, the Central Bureau Investigation (CBI) upon investigation found the audit firm guilty of conspiracy as they were paid more than any firm at that time and portrayed discrepancies in the treatment of Satyam as they did not conduct any independent investigation and just relied on the document provided by the accused. Among various other corporate governance issues, there was simple manipulation of revenues and earnings, and operating profits were artificially boosted from the actual Rs. 61 crore to Rs. 649 crore. Its financial statements for years were false and cooked up.

Tri-sure India Ltd. v. A.F. Ferguson (1985)

In this case, the court determined the duties of the auditor towards the company and its shareholders. Herein the company which was initially financially healthy showed a steep increase in its profits which led to oversubscription of shares in public issues. Later when the company was exposed, it blamed the auditors for not fulfilling their duties and having missed the discrepancies in the profit margins. Dealing with the issues, the court clarified the duties and responsibilities of the auditors and the extent of their involvement in preventing such fraud, however, it in no way takes away the responsibility from the part of management to ensure the proper mechanism is being followed in the preparation of the statements.

Punjab National Bank Housing Finance

One of the very recent cases, where the Securities and Exchange Board of India (SEBI), sent a letter to PNB Housing Finance Company on its proposed deal with an American investor. SEBI has questioned the housing finance company why all its shareholders were not given equal opportunities and why the common shareholders have been ignored. Further, it raised issues relating to corporate governance based on the records and stated that the company has not complied with the process of making principal governing disclosures and obligations of a listed entity. The board of directors has further been called upon to explain this transgression of the law.

Yes Bank

Once soaring high with the flavor for foreign institutional investors, YES Bank was on a lending spree with the highest proportion of loans to stressed companies. There were huge divergences in the non-performing asset levels which led to the Asset Quality Review (AQR) program. In the year 2016-17, the bank reported gross Non Performing Assets (NPA) as Rs. 2019 crores, whereas according to RBI’s assessment it was Rs. 8373 crores. The bank made every attempt to downplay the situation and even falsely highlighted that most of their accounts have been paid back, some paid to asset reconstruction companies, etc. Thus the auditors failed to fulfill their responsibilities by helping the management and agreeing to their proposals.

Infrastructure Leasing & Financial Services Limited (IL&FS)

Even during their deteriorating phase from 2011 to 2019, five rating agencies gave them a total of 429 ratings which was not known to the market as well as the regulators until 2018 Later when a forensic audit was done at the behest of the new board, it was found that the management had manipulated some of these agencies to give a good rating. These agencies also often accept the data as given by the company without taking any insights from people outside the management such as auditors, bankers, etc. Even the company’s auditors too failed in their responsibilities. The auditors for the company have been highly criticized. The National Financial Reporting Authority (NFRA) recently even declared the appointment of Deloitte as the statutory auditor of IL&FS Financial Services as an illegal act due to conflict of interest and besides Deloitte also was not eligible under various sections of the Companies Act, 2013. There was professional misconduct compromising the independence of mind and appearance of statutory audit. There was intentional recklessness, a lapse in discharging the duties, and collusive behavior to the fraudulent presentation of financial statements.

Independent directors who majorly rely on the data given by the company, often prefer to leave when things go downhill as their position is not protected. There have been instances when the independent directors chose to opt out when things did not work very smoothly in the companies. Like Vikram Mehta who suddenly resigned from Jet Airways wherein he was the independent director and a member of the audit committee, giving the reason of time constraint however continued to be on the boards of several other companies.

Similarly, Analjit Singh now the Chairperson of Max Healthcare and Max Bupa Insurance company had resigned as a non-executive independent director from the board of Tata Global Beverages when the dispute arose between Ratan Tata, an Indian industrialist, and a philanthropist who was the Chairperson of Tata Sons and other major Tata companies, and Cyrus Mistry who served as the chairman of the Tata group. Even in the loan scam of Punjab National Bank, Gitanjali Gems reported that their second independent director, Anil Umesh Haldipur resigned citing personal reasons after the alleged fraud came into the media.

The way forward

Even after these scams, there has not been an effective change in the governance, rather more and more regulations have been added. We need to implement some harsh measures in order bring any change such as:

Punishing individuals instead of companies for noncompliances of frauds. To have a database of the companies for promoters, directors, and key managerial persons, people who are reasonable for maintaining governance, their relatives and interlink them to have enhanced surveillance software-driven systems.
Widely publishing information on frauds, holding liable individual persons, imposing huge penalties on personal capacities, or even imprisonment. To have a deterrent effect and retribution severe punishments need to be imposed.
Most scams are money-related and always professionals are involved. In that case, the responsibilities and duties of the Chief Financial Officer (CFO) need to be enhanced.
The focus should be increased on auditors as people should be able to place their trust in them. They cannot be accomplices. To ensure a fair game, auditors must be selected randomly from the database maintained by the ICAI and they should be provided greater independence which can be done by paying their audit fees out of the investor protection funds of MCA, SEBI, and other such bodies.
The audit firms of the companies should be registered with SEBI. NFRA should also get super involved in creating a strong body of auditors who are diligent and honest in their work. Auditors who leave before their terms are treated as a red alert situation which must also be subjected to extensive interview sessions along with the companies.
Having internal auditors must be mandated for at least big size companies with enhanced roles and responsibilities working in collaboration with statutory auditors
Having law firms involved compulsorily with the listed companies to carry out risk analysis, check all compliances, opine over legal cases. These analyses must be made public.
Improvement of the quality of information disclosures and their usability help the regulators and the investors determine for themselves the status of the company.

Conclusion

Due to increasing financial crises all over the world, the need for strong corporate governance has become a basic requirement for regulators as well as investors. It’s a bitter truth that the audit team and independent directors are hired for the sake of compliance with the legal regulation, but they have a major role in terms of contributing to the strategy and direction of the firm in its overall control and accountability. As for the audit committee, their independence should be supported despite their bitter recommendations.

For independent directors, it could be said that even though they are appointed in the interest of the company and the stakeholders, they end up doing good to the promoters. Even if few of them discharge their duties and responsibility prudently and effectively, at the end of the day the decision of the majority prevails, which dilutes their effectiveness. There are huge responsibilities cast on them however only having stringent norms would not improve the corporate governance practices, efforts need to be made for their implementation too.

References

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Why does American law not prohibit brands from copying each other

By

Shoronya Banerjee

-

August 11, 2021

0

375995-ipr-01 — Image source: https://bit.ly/317W2N4

This article has been written by Nishant Gulyani, pursuing the Diploma in Intellectual Property, Media and Entertainment Laws from LawSikho.

Introduction

For once in your life, every one of you must have thought about how all these fashion brands have exact similar designs and what are the laws behind them. This article will explore the laws related to the multi-billion dollar fashion industry in the United States.

You will learn how trademarks, copyright, and patents can protect your clothing brands as well as their designs. You will also learn about the landmark cases related to the fashion industry and the steps were taken by the US government to enhance the scope of protection for fashion brands under intellectual property laws. By the end of this article, you will get to know the most appropriate category of intellectual property rights suitable for your brand and the process of seeking protection under the same.

The US fashion industry and the laws applicable to it

The fashion industry in the United States is constantly evolving, trying to adjust to customer trends and new technology. It is the biggest fashion industry in the world by valuation, worth $368 billion, with some of the heavyweight brands amounting to the largest share of that, i.e. Nike, Gap, and TJX. But it still faces a loss of approximately $250 billion every year due to the inability of American laws to grant protection to fashion brands and independent designers for their clothing designs.

So, here arises a question about whether you can also copy someone else’s design without getting caught. Although it’s not suggested, you can do it and get away with it in 90% of cases, and that’s what most American fast fashion brands are doing. As per the Economic Times report, the US-based fast-fashion brand Forever 21 has been sued by various other big fashion giants as well as other small independent fashion artists for copying their designs. And it’s not only fast-fashion labels who imitate designers. High fashion designers copy other high fashion designers day and night.

The laws that can help you protect your brand/designs

Trademarks

According to 15 U.S.C. § 1127, the primary purpose of trademarks is to identify the source behind the goods, so the protection available through trademark law is limited to the brand logos and doesn’t cover the clothing and other elements of clothing like design, fabric or color. In layman’s language, it can be said that trademark law prohibits someone from selling and passing off his goods as that of another (say, Nike).

For instance, if someone imitates the logo of Nike on their jacket then that is prohibited by law. But that protection is only limited to the logo or label of Nike on the jacket and not to the design of the jacket.

There is one way by which you can protect not only your logo but also your design through trademark law i.e. through acquired distinctiveness (15 U.S.C. § 1052(f)). It implies that after the continuous use of your design for a long time, when consumers start associating that design solely and exclusively with your brand, only then trademark protection can be given through acquired distinctiveness for your design as a whole. But till the time you will acquire distinctiveness in the market, that same design would be out of fashion.

Patents

Patents are granted for inventions or any process that is new and inventive. In the case of clothing, protection is available in the form of design patents. But is it useful for protecting your clothing designs? Not really, as according to 35 U.S.C. § 171, design patents are granted to someone for their new, original, and ornamental design. What is new and non-obvious, and all the general clothing items like T-shirts and trousers, are automatically disqualified for patent protection (as there is nothing new and non-obvious about shirts and jeans).

Copyright

As per 17 U.S.C. § 102(a), copyright protection is given to the creators of artistic, literary, musical, dramatic, pictorial, graphic, and sculptural works to protect their creativity. In the context of clothing, the copyright law in the United States is a bit vague and has various loopholes.

According to the US Copyright Law, the main motive behind giving copyright protection is to strike a balance between public benefit and the creator’s rights. There should be an incentive to promote creativity and innovativeness among the general public, but those incentives shouldn’t become a fear in the minds of other people to continue their creative and artistic work. Therefore, there is no copyright protection available for facts or language having a utilitarian aspect. In layman’s language, it implies the US Copyright Law doesn’t protect useful articles.

Exception

The elements of clothing that can be separated from the useful aspect of clothing can be granted copyright protection under US Copyright Laws. Under this exception, the prints or fabric designs can be protected by copyright as they can be separated from the useful aspect/element of clothing and can be viewed as artistic work. For example, if you have designed a T-shirt with an original graphical or pictorial print on it, then you can seek copyright protection for that print (as it is a creative element) but you can’t seek copyright protection the design of that t-shirt i.e. on any cuts or color (as it is a useful or functional element)

How can you seek this protection?

For trademarks

After conducting a comprehensive trademark availability search on the USPTO portal, you can file a trademark application from your USPTO.gov account to get the label or logo of your brand registered.

Points to remember

It can only restrict others from copying your logo or label on their clothing and not the fabrics or designs.
It is only helpful for big brands and not for small independent designers.

For patents

After conducting a thorough patent search on the USPTO portal, you can file the patent application for the grant of patent from your USPTO.gov account to get your design registered.

Points to remember

Your design should be new, original, and non-obvious.
Getting a design patent can be too costly for independent designers (it costs thousands of dollars).
The duration of a design patent is 15 years, in which the fashion or trend can change over 15 times.

For copyrights

Although it is not compulsory to register your work to get copyright protection, it is always advisable to get your work registered for facilitation of infringement suits or transfer of rights. You can register your work by submitting an application form along with copies of your work to the US Copyright office.

Points to remember

Only those elements of your clothing that can be separated from the useful or functional element of it can be protected by copyright. Ex. Prints or fabrics and not the entire design.

What has been done by the US Government?

There have been in total three attempts by the US congress to solve this issue by hearing three different copyright bills:

Design Piracy Prohibition Act ( introduced in 2009)
Innovative Design Protection and Piracy Prevention Act ( introduced in 2010)
The Innovative Design Protection Act ( introduced in 2012)

The primary objective of all these bills was common i.e. to remove the concept of Separability from the US Copyright Act and offer copyright protection to the designs of the fashion brands as a whole instead of just protecting the creative elements of it. But Sadly, all of these bills weren’t passed in congress and the law remains vague in the context of copyright protection available to the fashion brands for their clothing designs.

Landmark cases

Star Athletica v. Varsity Brands

Facts of the case in brief

In this case, the respondent Varsity Brands, a leading manufacturer of cheerleading uniforms, with over 200 registered dimensional designs such as lines or zigzag patterns sued Star Atletica, which is a marketer of cheerleading uniforms, for copyright infringement.

Issue raised

Are the designs or graphics capable of copyright protection?

Rule/provisions

As per 17 U.S.C. § 102, copyright protection is given to the creators of artistic, literary, musical, dramatic, pictorial, graphic, and sculptural works to protect their creativity. 17 U.S.C. § 101 defines “pictorial, graphic, and sculptural works to include two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints, and art reproductions, maps, globes, charts, diagrams, models, and technical drawings, including architectural plans.

Held

The Supreme Court held that only those creative elements of clothing that can be separated from the useful aspects of clothing can be granted copyright protection. So, the designs on the uniform manufactured by Varsity Brands consisting of zigzag patterns and chevrons can be registered and protected as copyright.

Analysing it further

This judgment has strengthened copyright protection for garment designs by establishing a two-part test to assess whether artistic components of a useful object are copyrightable. The most confusing questions regarding the scope and applicability of the copyright laws have been made evident through this judgment, i.e.:

What can’t be protected by copyright?

The court also stated that copyright affords “no right to prohibit any person from manufacturing [clothing] of identical shape, cut, and dimensions (as they are considered the functional elements of clothing).

What can be protected by copyright?

The “two-dimensional designs appearing on the surface of [clothing]”, including “combinations, positionings, and arrangements” of shapes, colors, lines, etc., are protected by copyright. (As they are the independent creative elements of the clothing). So, if that creative element (say, print on a t-shirt) is removed from the T-shirt, it (print) still has an independent creative identity of its own that should be protected by copyright. The reason behind this principle of separability, i.e., to separate useful and creative elements of clothing, is to avoid creating a monopoly on useful articles such as bags, clothes, or shoes.

Christian Louboutin S.A. v. Yves Saint Laurent America

Facts

In this case, Louboutin, a famous brand selling shoes with bright red soles, filed a trademark infringement suit against YSL for using a similar color of sole on some of their shoes, as it would cause confusion in the minds of average American consumers and hence result in a loss for Louboutin.

Issue raised

Can the exclusive right to use a specific color on the sole of a shoe be granted to a brand?

Rule/provisions

15 U.S.C. § 1127 defines a trademark as any word, symbol, or device which a person has a bonafide intention of using in commerce and can distinguish its product from those of other sellers. The bright red sole of the Louboutin was registered as a trademark with the USPTO and, according to 15 U.S.C. § 1057(b) a certificate of registration implies that a mark is valid.

Held

The district court held that giving an exclusive right to use the red color on the sole of Louboutin is too broad and would hamper the competition in the market.

Analysis

As stated in the judgment, an exclusive right to use color in a product can’t be granted as color is an important feature of all creative and innovative product designs. Moreover, a color could be registered as a trademark, but only in distinct patterns or combinations of colors that show a deliberate attempt to create a distinctively recognized mark incorporated into the goods.

Suggestions

The best possible way to solve this issue is to make some necessary changes to the IDPA (Innovative Design Product Act) and present it to congress. It is the only way of bringing a more appropriate law and starting a discussion on the issue of fashion copyright by creating awareness and highlighting the seriousness of this issue in the eyes of the general public.
People should be educated about the importance of logos or labels on their garments, as the re-introduction of logos on various products like clothes, shoes, and bags can provide legal protection to the creators or designers of the work, and there will be very little chance of infringement.
Another way to lower copying instances by various fashion brands is by increasing the dependence on design patents instead of copyrights, especially for established brands with a substantial amount of money. Design patents should be seen as more of an investment by patenting products that have a sale value in more than one season in the market.

Conclusion

All the loopholes discussed above, when considered together, are the answer to the very question asked on the topic of the article itself, i.e. why does American law not prohibit brands from copying each other? Whether it is the concept of separability or the expensive design patents or the incapability of trademarks to protect whole designs. Each of these factors has led to copying by these American fashion entities in the name of inspiration. But it can be tackled by adopting a separate provision that can provide registered as well as unregistered community design rights, granting protection to clothing and other accessories as a whole and not to the specific creative elements only. This provision has already been present in the laws of the European Union governing the fashion industry, which has given EU designers an edge over US designers. Another step to resolving this issue could be raising awareness among the general public about using the existing intellectual property rights for protecting clothing designs, as explained in the above article.

References

Julia Brucculieri, How Fast Fashion Brands Get Away with Copying Designers, Huffpost, ( April 9, 2018) https://www.huffpost.com/entry/fast-fashion-copycats_n_5b8967f9e4b0511db3d7def6
Can you copyright clothing designs?, New Media Rights, (October 27, 2020) https://www.newmediarights.org/business_models/artist/can_you_copyright_clothing_designs
Can I use copyright to protect my fashion designs?, copyright alliance https://copyrightalliance.org/education/qa-headlines/copyright-fashion-designs/
John Zarocostas, The role of IP rights in the fashion business: a US perspective, WIPO Magazine, (August 2018) https://www.wipo.int/wipo_magazine/en/2018/04/article_0006.html
Christian Louboutin S.A. v. Yves Saint Laurent Am. Inc., Case text, (August 10, 2011) https://casetext.com/case/christian-louboutin-sa-v-yves-saint-laurent-am-inc
FindLaw FOR LEGAL PROFESSIONALS, https://codes.findlaw.com/us/title-17-copyrights/17-usc-sect-101.html

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All you need to know about e-SANTA

By

Diganth Raj Sehgal

-

August 11, 2021

0

Image Source: https://bit.ly/2VGGvTQ

This article is written by Ronika Tater, from the University of Petroleum and Energy Studies, School of Law. In this article, she discusses the need and the importance of this platform with the support of constitutional provision.

Table of Contents

Introduction

The Government aims to double the income of farmers by 2022. Hence, the Ministry of Commerce and Industry virtually inaugurated e-SANTA which is an electronic marketplace providing a platform to connect aqua farmers and buyers. This platform is specifically for aqua or marine farmers. It is similar to that of any other platform such as Flipkart or Amazon, where the seller gets registered to sell or connect with the consumer for selling the product. It is also important to note that for normal farmers there is another platform by the name of e-NAM. To that end, by launching e-SANTA the government is one step closer to its goal.

What is e-SANTA?

The term e-SANTA was coined for the web portal which means Electronic Solution for Augmenting NaCSA farmers Trade-in Aquaculture. National Centre for Sustainable Aquaculture (NaCSA) is a department under the Marine Products Export Development Authority (MPEDA) which was formed in 1970 by the Ministry of Commerce and Industry.

The e-SANTA platform enables the farmers to get a better price and to connect with the exporters directly. It assists the exporters to purchase quality products from the farmers thereby enhancing traceability which is a key factor in international trade. Earlier when the farmers used to sell their product through the assistance of the middleman there was a chance of price fluctuation and the ultimate loss was to the farmers. However, through this platform, the connection of the middleman is removed thereby benefiting the farmers to sell their products directly and profiting from the same.

Constitutional provisions for aqua farmers in India

The Indian Constitution is the lengthiest written Constitution in the world and provides various fundamental rights and several principles of democratic government. However, the Constitution does not explicitly provide provisions for farmers but it is left for interpretation by the higher courts such as the Supreme Court or the High Courts of India. The legislature also has to frame such policies or guidelines for the benefit of farmers. As per the United Nations (UN) Declaration on the Rights of Peasants and Other People Working in Rural Areas, (2018), it defines a farmer as any person engaging or wanting to engage alone or in association with others or as a community for production for subsistence or the market or in any other form. The following are some of the rights and duties enshrined in the Constitution for the farmers as mentioned below:

Article 13 states that all the laws inconsistent with the fundamental rights shall be void. The main objective of this article is to ensure that laws should be made in accordance with fundamental rights. Hence, the platform is made for the benefit of the aqua farmers.
Article 14 states the principle of equality before the law. In the case of Inderpreet Singh Kahlon v. State of Punjab, (2006) the Supreme Court observed the concept of “malefide” and stated that any action taken by the State in undue haste may be held void if it is against the basic concept and principles of Article 14.
Article 38(2) states that every State shall ensure to minimise the inequalities in income and ensure to eliminate inequalities in status, facilities and opportunities in every group of people residing in different areas of the country. Hence, the platform provides opportunities for aqua farmers to connect with the buyers and sell their products with no interference in price fixation or delay.
Article 39 provides that the State, while making policies, should ensure that the development and growth of the economic system does not result in the concentration of wealth on one hand thereby leading to corruption. Hence, this platform removes the concept of middlemen thereby providing the buyer and the seller to connect directly.
This platform agrees with Article 43 which states that legislation or economic organisation should ensure that all the workers, agricultural, industrial should work to ensure a decent standard of life, a living wage, proper conditions of work and leisure and social and cultural opportunities.
Article 48 of the Constitution of India envisages every State to organise agriculture and animal husbandry on modern and scientific lines to preserve and improve the breeds.
Article 51(c) stated that States should respect international law and treaties. However, they have persuasive value in the Indian Courts but the Courts are open to interpret statutes in order to maintain harmony with the international laws and conventions.

Significance for aqua farmers

The platform e-SANTA provides various opportunities to the aqua farmers such as raise income, lifestyle, self-reliance, quality levels, transparency and accountability. The platform changes the traditional form of carrying out business transactions from a non-formal way to more formalised and legally binding. The government stated that the platform will raise the livelihood of farmers which the fundamental rights enshrined in Article 21 as mentioned below:

Reducing risk;
Awareness of the products and markets;
Increase in income;
Shielding against the wrong practice;
Ease of processes.

Features of e-SANTA

With the growth and development of technology, the internet has played a major role in every sphere of life. e-SANTA is a digital platform for marketing their product between the farmers and the buyers by eliminating middlemen. It is also a revolutionary movement compared to the traditional form of transaction by providing contactless, cashless, and paperless transactions between the farmers and the buyers. This platform acts as a medium to advertise various kinds of products from the buyers, fishermen and fish producing organisations in India to the people within the national market or to the international market. It can also be thought of as an auction platform. One of the main features of this platform is that it is available in many languages considering the diversity and the local population in mind.

Considering the challenges faced in traditional aqua farming by the farmers as mentioned below:

Monopoly and exploitation by the middlemen.
Exporters were facing inconsistency with the transaction system.
Difference between the originally purchased product and the final exported product. There were often quality gaps at the time of the product purchased.
Traceability was one of the main issues in international trade.

Hence, this platform provides an improvement in the living standards of the farmers thereby enhancing India’s reputation in the global market and trade. The portal acts as an assistance between the fishermen and the buyers within the domestic market or abroad. The Government also stated that this platform is one step closer to help achieve Atma Nirbhar Bharat vision of making India self-reliant.

What are the steps for transaction?

The following are the steps that provide how the transaction takes place in this platform:

It is a paperless end-to-end electronic trade platform, this is a movement towards sustainable growth and development.
Farmers have the freedom to list and mark their products according to their quality. The electronic payment system is supported by NaCSA as an escrow agent.
Online negotiation will be made for the crops and advance payment with an estimated invoice will be generated electronically.
After finalising the harvested crop by the buyer, the final amount is decided with the issuance of a delivery challan.
On receiving the assigned material to the exporter, the final invoice is generated and the exporter makes the rest of the payment. The payment is verified by the NaCSA agent and accordingly made to the farmers.

What is the standard operating procedure in e-SANTA?

This platform enables farmers to participate, quality seed procurement, water exchange and harvesting regimes leading to a reduction in the cost of production and also prevention of various transmission of disease. Hence, the aqua societies provide social, environmental obligations and food safety. The standard operating procedure for harvesting is conducted as mentioned below:

Based on the market price and economic viability of the crop.
Considering the report of any natural calamity by the meteorological department.

Pre-harvest quality check

In this step, the harvesting sampling needs to meet the quality standards as expected by the buyer or the exporter. Hence, before draining the pond it is advisable to check the following:

The moulting percentage should be less than five per cent.
The gill or body fouling should not be delayed or otherwise corrective measures should be adopted.
To ensure that the pre-harvest testing is in advance testified for the absence of antibiotics by the laboratory of MPEDA.

Post-harvesting quality check

The following are some of the steps that need to be analysed during this process:

To check the harvesting net and implement any necessary repairs if required and rectify the same.
To preserve the appropriate quantity of good quality ice on time.
To keep sufficient tanks for preserving immediately harvested shrimps.
To keep sufficient clean plastic containers for transporting shrimps.
To avoid shades for avoiding exposure of the harvest shrimps to direct sunlight.
To ensure harvesting of shrimps hygienically and faster delivery of the product to maintain the freshness and quality.
The harvesting elevator or harvesting pump machines should be kept ready at this stage to avoid any unnecessary delay.
The harvester shrimp must be maintained and stored at a steady temperature.
Water and ice should be clean, safe and as per the approved standards.
To ensure that all the equipment, containers and machines should be maintained clean.
All the operators involved in the process of harvesting should wear proper and disinfected boots and gloves.
Potable water with ice for chilling should be used at this stage.
To avoid any quality gap between the originally ordered product, the shrimp to the processing plant should be sent at the earliest.
To ensure and record all the declaration certificates safety.

Hazardous substances

In case if dealing with any hazardous substances it is advisable to analyse the following steps:

For precaution, shrimps should be periodically checked for any residue of suspect pesticides and injected with Poly Chloro Biphenyls or any other heavy metal.
For disposal of plastic bags should be made as per the local regulation and not be disposed of in water thereby violating the life of marine animals.
To preserve fuel, lubricants and other chemicals for cleaning and disaffection in a storage place.

Difference between e-SANTA and e-NAM

e-SANTA is a platform for aqua farmers or marine farmers, whereas e-NAM is the national network for other farmers which can be accessed online. It provides an online trading portal for all the “mandis” (also known as a marketplace) and the buyers to participate and transact. This platform has been created by the Ministry of Agriculture & Farmers’ Welfare which is available to each mandi to join the network free of cost and follow the necessary regulations as stated by the various State Mandi Acts. It provides an alternative platform for the farmers to accept the offers from other “mandis” online or through the local market. Consequently, increasing the volume of business and greater competition for specific products results in higher profit for the mandi.

Conclusion

e-SANTA is a paperless and end-to-end electronic trade platform between farmers and exporters. This platform provides the farmers with a monopoly over the products list and fixation on the price of the product. It also provides the exporters with the freedom to list their requirements and needs to choose the product based on the geographical location, size, season, harvest dates, etc. In a nutshell, it enables both the farmers and the buyers to have control over the trade and to make a reasonable decision thereby making it a transparent and accountable platform for the transaction. Recently, in the month of July, aqua farmers in Andhra Pradesh signed up to sell their products through this platform. This move has been appreciated by both the State Government and the farmers as it provides good returns to the farmers and avoids middlemen.

References

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Introduction

Judicial ethics in non-legal knowledge

The underlying problems due to lack of relevant knowledge in special matters

Limits of acquiring knowledge on special matters

Measures for obtaining knowledge on different subject matters

Code of Conduct

Expert opinion

Special courts

Conclusion

References

Introduction

Facts of the case

Issue

Arguments on behalf of the petitioner

Arguments on behalf of the respondent

Courts observations

Judgment of the court

Analysis of the judgment

Conclusion

References

Introduction

What are human rights

Universality and inalienability

Indivisibility

Interdependence and interrelatedness

Equality and non-discrimination

Participation and inclusion

Accountability and transparency

Rights of children

What is online gaming

The harmful effect of online gaming

Another factor affecting the child’s health through online gaming

The government of India’s stance on online gaming

Rules and regulations

Conclusion

References

Introduction

Concept of character rights

Disney’s attitude towards infringement

Business solutions to avoiding infringement

Legal solutions to combating infringement

Disney v. characters for hire

Star wars controversy

Disney v. Kool Klown party

Practical approach towards avoiding infringement

Introduction

Electronic means and their benefits in fighting an epidemic

Benefits of using electronic means to fight the pandemic

Electronics as a means to accelerate recovery rate amidst a pandemic

The negligence associated with electronic means and the ways in which they can be resolved

Conclusion

References

Introduction

What is Delta Plus

Symptoms of Delta Plus variant

Resistant to monoclonal antibodies

Effectiveness of vaccines on Delta Plus variant

Delta, the ‘most transmissible’ COVID-19 variant identified so far : WHO

Has the third wave begun

Views of the experts

Can the Delta Plus variant trigger another wave

Will the third wave affect children more

States in India with Delta Plus variant cases

Status of Indian States affected with Delta Plus variant cases so far

Tamil Nadu

Maharashtra

Haryana

Gujarat

Madhya Pradesh

Kerala

Karnataka

Conclusion

References

Introduction

Geographical indication : a brief overview

Benefits of obtaining the tag

Process of registration : is it difficult?

Step 1 : the application

Step 2 : scrutiny and examination

Step 3 : objections or acceptance