Author Archives: novojuris

COPYRIGHT ISSUES IN AUDIOBOOKS

Authors of original work in any form have copyright protection and audiobooks are no exception to this. Section 17 of the Copyright Act, 1957 sets out that the author or creator of work is the first owner of copyright. Copyright includes a bundle of rights such as the right to reproduce, create derivatives, distribute copies, and perform the work publicly. If an audiobook is based on a literary work, the copyrights lie with the author of the literary work since the audiobook is derived from the original literary work. These rights have to be granted by the author to another party in order to create the audiobook. Naturally, the reverse is also true.

If the work was originally an audiobook, it will be protected as sound recording. “Sound recording” means a recording of sounds from which sounds may be produced regardless of the medium on which such recording is made or the method by which the sounds are produced. The copyrights in sound recordings include the right to make any other sound recording embodying it; to sell or give on hire, or offer for sale or hire, any copy of the sound recording; and to communicate the sound recording to the public. The rights lie with the performers and the producers of the audiobook and will have to be transferred to another party that wishes to create a literary version. Copyrights can be assigned through a contract, in exchange of consideration.

Copyright protection kicks in automatically as soon as a work, such as audiobook is created. Registering a copyright, places on record a confirmable account of the date and content of the work so that in the event of a legal claim, or a case of infringement of rights, the copyright owner can produce a copy of the work from an official government source. Another advantage of registering a copyright is that, since India is a member of the Berne Convention, the copyright protection also extends to the over 140 member countries that are members of the Berne Convention. In India, registering a copyright is not mandatory. Exceptions are often granted for circumventing the plagiarism protection tools for research, testing, national security, etc

While more and more people are becoming sensitized with issues of plagiarism and copyright violation, detection of infringement of rights is thornier with audiobooks than with literary medium. There are a number of software to detect plagiarism of text but not much exists to check plagiarism in audiobooks. There exists software to convert audio into text that in turn can be checked for plagiarism. However, to be able to directly check for copyright infringement in audiobooks remains a challenge (perhaps that is a startup idea! ). There is also software that are able to detect the exact music after hearing a few notes so perhaps in the near future we might also see a plagiarism check on audio mediums. To build technology to prevent copyright infringement may go to the extent of preventing copying by robots, etc. but technology will not be able to prevent manual copying.

When an infringement is found, the Copyright Act, 1957 provides for both civil and criminal remedies. Section 55 provides for civil remedies and states that, upon infringement, “the owner of the copyright shall be entitled to all such remedies by way of injunction, damages, accounts and otherwise as are or may be conferred by law for the infringement of a right.” The Act also provides for a number of criminal penalties including imprisonment, police intervention, payment of fines, etc.

Author: Vasundhara Bhatia

CCI amends provisions relating to informants requesting inquiry in to certain agreements or dominant position of enterprise

Competition Commission of India (“CCI”) vide Gazette Notification dated 20 November 2019, amended the Competition Commission of India (General) Regulations, 2009 relating to informants, as follows:

  • A new clause 10(2)(da) is inserted to provide details of any dispute between the informant and the parties before any court, tribunal or arbitrator in respect of the subject matter of the information
  • Informant’s request for confidentiality is diluted by the addition of a proviso to Rule 35(1)
  • Fees payable for providing any information on certain agreements and dominant position of an enterprise is increased per below table:
Type of informer Present Fees in INR Previous Fees in INR
  • Individual or Hindu Undivided Family
5,000 5,000
  • Non-Government Organization or Consumer Association or Co-operative Society or Trust
10,000
  • Firm or company with turnover up to INR 2 (two) Crore
40,000 20,000

[up to INR 1 (one) Crore Turnover]

  • Firm or company with turnover above INR 2 (two) Crore but below INR 50 (Fifty) Crore
1,00,000 50,000

[other than above cases]

  • Cases other than above
5,00,000

Source: http://egazette.nic.in/WriteReadData/2019/214225.pdf

Notification of IBC sections for insolvency resolution and bankruptcy of individuals and partnership firms effective from December 1, 2019

Insolvency and Bankruptcy Board of India (“IBBI”) vide Gazette Notification No. S.O. 4126 (E) dated 15 November 2019, notified the effective date as 1st December 2019, for the following sections of the Insolvency and Bankruptcy Code, 2016 (“IBC”):

Section Details of the Section
2(e) Applicability of the IBC to personal guarantors to corporate debtors
78 Part-III applicable to insolvency resolution and bankruptcy for individuals and partnership firms (except fresh start)
79 Definitions with regard to Part-III i.e., process for  insolvency resolution and bankruptcy for individuals and partnership firms
94 to 187
  • Chapter-III of Part-II i.e., insolvency resolution for individuals and partnership firms (Sections 94 to 121)
  • Chapter-IV of Part-III i.e., bankruptcy order for individuals and partnership firms (sections 122 to 148)
  • Chapter-V of Part-III i.e., administration of estate of bankrupt (sections 149 to 178)
  • Chapter-VI of Part-III i.e., adjudicating authority for individuals and partnership firms (sections 179 to 183)
  • Chapter-VII of Part-III, i.e., offences and penalties (Section 184)
239(2)(g) to 239(2)(i) Power of Government to frame rules under section 79
239(2)(m) to 239(2)(zc) Framing of rules for the process of insolvency resolution and bankruptcy
249 Amendment of the Recovery of Debts due to Banks and Financial Institutions Act, 1993 per the manner specified in Fifth Schedule.

Source: http://egazette.nic.in/WriteReadData/2019/213952.pdf

Further the IBBI vide Gazette Notification No. G.S.R. 855(E) dated 15 November 2019, notified the Insolvency and Bankruptcy Board of India (Application to Adjudicating Authority for Bankruptcy Process for Personal Guarantors to Corporate Debtors) Regulations, 2019, effective from 1 December 2019, wherein, inter-alia, below compliance are provided:

  1. Application to initiate bankruptcy of an individual or partnership firm to be submitted in Form-A by debtor/guarantor and in Form-B by creditor
  2. Formats of public notice to be in Form-C and notice to creditors in Form-D
  • Intimation of bankruptcy process to any commercial or financial transaction of value of INR 1 (one) Lakh and above by the individual/partnership-firm undergoing bankruptcy

Source: http://egazette.nic.in/WriteReadData/2019/213963.pdf

Please refer to our earlier regulatory updates on the process of insolvency here and the process of bankruptcy here.

MCA amends the limits for board approval of related party transactions

Ministry of Corporate Affairs (“MCA”) vide Gazette Notification No. G.S.R. 857 (E) dated 18 November 2019, amended Rule 15(3)(a) of the Companies (Meetings of Board and its Powers) Rules, 2014 per below table:

Previous Position Present Position
Board approval for purchase of goods/disposing of property through related party was mandatory for an amount

  • up to 10% or more of the turnover of the company or
  • INR 100 Crore or whichever is lower
The part of INR 100 crore is omitted.  Hence, Board approval will now be required for an amount up to 10% or more of the turnover alone.
Board approval was mandatory for leasing of any property amounting to lower of the below:

  • 10% or more of net worth of the company
  • 10% or more of turnover of the company
  • INR 100 Crore
The part of INR 100 Crore and the part of of networth is omitted. Board approval will now be required for an amount up to 10% or more of the turnover alone.
Board approval was mandatory for availing or rendering of any services amounting to lower of the below:

  • 10% or more of turnover of the company or
  • INR 50 Crore
The part of INR 50 crore is omitted.  Hence, Board approval will now be required for an amount up to 10% or more of the turnover alone.

Source: http://egazette.nic.in/WriteReadData/2019/214065.pdf

 

Notification of Regulations for Insolvency process for Personal Guarantors to Corporate Debtors, effective from December 1, 2019

Insolvency and Bankruptcy Board of India (“IBBI”) vide Gazette Notification dated November 20, 2019, notified the Insolvency and Bankruptcy Board of India (Insolvency Process for Personal Guarantors to Corporate Debtors) Regulations, 2019, inter-alia, providing below compliance:

  1. Appointment of resolution profession
  2. Procedure for a creditor to submit claim for registration
  3. Procedure for meeting of creditors
  4. Contents of repayment plan and filing this plan before Adjudicating Authority

Source: http://egazette.nic.in/WriteReadData/2019/214255.pdf

Notification of Regulations for Bankruptcy Trustee for Personal Guarantors to Corporate Debtors, effective from December 1, 2019  

Insolvency and Bankruptcy Board of India (“IBBI”) vide Gazette Notification dated November 20, 2019, notified the Insolvency and Bankruptcy Board of India (Bankruptcy Process for Personal Guarantors to Corporate Debtors) Regulations, 2019, inter-alia, providing below compliance:

  1. Appointment of insolvency professional as bankruptcy trustee
  2. Appointment of professionals by bankruptcy trustee
  3. Submission of reports and maintenance of registers by bankruptcy trustee
  4. Submission of quarterly progress report to Adjudicating Authority
  5. Process for future claims by creditors
  6. Process for bankruptcy trustee to convene meeting for voting
  7. Process for asset realization & proceeds distribution

Source: http://egazette.nic.in/WriteReadData/2019/214254.pdf

 

Space: Liabilities in India and other countries

Millions of pieces of space debris litter the space, be it defunct satellites (average lifespan of a satellite is 5-8 years) or the intentional destruction of satellites through anti-satellite missile testing (ASAT) demonstrated successfully by United States (US), Russia, China, and India (March, 2019). Disaster occurs when any debris travelling at high speeds strikes a working satellite/spacecraft, or falls back on earth.  There are mechanisms for tracking of more than 5,00,000 (Five Lakh)  space debris, so that liability can be fixed on the owner of the debris, while there are millions of smaller debris which cannot be tracked. Some examples of damage due to space debris include, damage of French satellite by debris from a rocket exploded a decade ago in 1996 and the destruction of functioning US Iridium satellite by collusion with a defunct Russian satellite in 2009. Countries have also developed certain mission control manoeuvres to avoid collision of debris with the spacecraft or satellites.

Space Law:

Liabilities related legislations are few in number. United Nations (“UN”) has published treaties governing space laws, requiring the member countries to ratify the treaties and to legislate suitable space laws in their respective countries. The five most important treaties of the UN are:

No. United Nations Treaties Ratification
1. 1967: Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (“Outer Space Treaty”) To note that India, USA, UK, France, China etc. have ratified.*
2. 1968: Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (“Rescue Agreement”)
3. 1972: Convention on the International Liability for Damage Caused by Space Objects (“Liability Convention”)
4. 1976: Convention on Registration of Objects Launched into Outer Space (“Registration Convention”)
5. 1979: Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (“Moon Agreement”) To note that India and France have signed, while China has ratified. However, US, UK, Russia have not signed.*

*Countries that we have been reading for our compare and contrast.

Of the above 5 (five) treaties, the 1972 Liability Convention imposes a duty on nations/countries (“States”) to be responsible to the public activities undertaken as a sovereign country.  The Liability Convention mandate that the States are equally liable for both public as well as private activities undertaken on its soil, i.e., States need to take legislative action to regulate space activities on its soil, as they are liable to answer internationally for private space activities violating international space law. In case an Indian citizen launches a spacecraft from outside India say France, then it appears that both France and India are considered launching States.

A State can exercise three types of jurisdiction to attract liability for space activities as shown below:

  1. Territorial Jurisdiction: Most of the operations of the space are conducted at ground control stations by way of remote controlled activities. Whether to make a rocket shed its first stage or to make a telecommunications satellite to change frequencies by ground control stations, it will allow States to control activities in outer space, by way of control over the territorial sovereignty. Further, territorial jurisdiction also plays an effective role over launch activities.
  2. Personal Jurisdiction: Since a person’s nationality cannot be lost due to operation from a foreign soil, the State can exercise personal jurisdiction based on the control over any incorporated company or company headquartered in their territory.
  3. Registration Jurisdiction: No space object can be launched without registration by States. That is a sovereign right to exercise jurisdiction over even the earlier two territorial and personal jurisdictions.

Potential Liability: While certain other States have already framed the regulations for potential liability, India is still in the process of legislating, per below table of comparison on liabilities:

Country Description of State Law on Space
India ·       Under the Draft Space Activities Bill, 2017, Section 8(2)(h) proposes third party insurance

·       Section 12 mandates indemnification of Central Government subject to a quantum to be decided by the Government.

·       Section 13 proposes punishment with imprisonment of not less than 1 year but up to 3 years or with fine of not less than one crore rupees and for continuing offences with a fine of INR 50 Lakhs per day for not obtaining a license.

·       Section 25(2) proposes that any IP rights created onboard a space object shall be deemed to be property of Central Government

USA Section 16 of the Commercial Space Launch Act, 1984 mandates obtaining liability insurance under a license issued for an amount as is considered necessary by the Secretary of United States.
UK Section 10 of Outer Space Act 1986, mandates indemnification to Her Majesty’s government in the United Kingdom against any claims brought against the government in respect of damage or loss arising out of activities carried on by the licensee.
France Article 13 of the French Space Operation Act, 2008, mandates absolute liability for damage on ground and in air space for third party liabilities, while the liability is on a fault basis for damaged caused in outer space.  Further, there is a limitation for the term of liability up to one year from the date of fulfilment of obligations mentioned in the license.

Article 14-15 limits the claim for compensation from French Government to a fixed ceiling of 60 Million Euro and the private space operator is liable to reimburse for indemnifications exceeding 60 M Euro

The Department of Space is under the Prime Minister’s Office in India and there is a dire need to bring in a robust legislation to monitor and register private space activities. Even in the absence of any specific laws, the States are liable for any potential losses that may occur due to any damage caused by its citizens. With numerous space explorations being undertaken by private sector the world over, India too should encourage private space explorations and at the same time, also limit the liability on the exchequer.