2020, the year where the world was on a standstill. This year would be marked in the pages of history as a period where one event controlled the existence of millions. Where the lives of many were at stake, the ones who were saving the day were the frontline workers. A virus originating in China not only crossed the local borders, but went on to possess the international frontiers. While the entire world was contained within their homes, the frontline workers were working tirelessly to assume control over the impossible situation. These workers are ensuring that the citizens are supplied with health, food, shelter, and security. Routinely we hear testimonies of workers who are overworked, and scared, but still are choosing to fulfil their duties. While these workers diligently attend to their duties, the least that can be done for them, is to ensure that they have proper rights and authorities during this pandemic.

Who are the frontline workers, and what is their primary work? –

Frontline workers are a subcategory of essential workers, whose services are needed during difficult hours of a pandemic.[1] Frontline workers are often called as the backbone of the healthcare system of a country. These workers are responsible for making a connect between the community, and the official healthcare services. They come into play during pandemics and epidemics, to offer their services, in places where they are unavailable or unaffordable. They help the common man understand his health condition, and suggest the appropriate course of healthcare action.

In the United States, an inclusive list of frontline workers would include, healthcare workers, essential shopkeepers, agricultural workers, truck drivers, protective service workers, etc.[2] In the United Kingdom, the frontline workers are categorised into the following broad categories. Health and social care, education and child care, key public services, food and goods provisions, transport, local or national government, public safety and national security, and utilities and other key financial services.[3] In India, in addition to the hospital staff in the government and non-government hospitals, the frontline workers are usually women who belong to various communities, but have a common goal of serving the nation. Frontline workers in India fall within the purview of two ministries, being, the Ministry of Women and Child Development, and Ministry of Health and Family Welfare. Some of the well-known frontline working organisations are, Aganwadi Workers, Auxiliary Nurse Midwife, Accredited Social Health Activists (ASHA), etc. These organisations have been in function since the 1970s.[4]

In India, the frontline workers have been working day in and out to find cheaper and amicable health care solutions, by trying to travel to the remote villages, and making their services known. When pandemics strike, these workers are often expected to work in addition to their daily duties. Currently, the frontline workers in India, are performing functions including but not limited to, identification and reporting of positive cases, containment of areas where there has been a mass spread, raising awareness and prevention of spread of false rumours regarding COVID-19, conducting community education sessions, etc.

Pandemics prior to COVID- 19-

Although the COVID-19 widespread has become the topic of much debate of late, but the 20th and the 21st centuries have both been home to a host of pandemics. The Spanish Flu of 1918 killed around 50 million people worldwide. During this pandemic, it was reported that the nurses who acted as frontline workers were the worst hit community, since they were directly exposed to the virus, without any formal care and rights which they could enforce.[5] The 1957 Asian Flu cost approximately 1-2 million deaths worldwide. It was reported that, about 52% healthcare workers in New York, and 32% health workers in Chicago, who also became the victims of the flu could not find an antidote for themselves.[6] SARS Coronavirus of 2002 saw a total of 8000+ infected cases. As per the World Health Organisation, there were more than 1700 healthcare workers who were infected by SARS.[7] The Swine Flu or the H1N1 Virus was the talk of the town back in 2019. As per an article of The Times of India, no H1N1 vaccine was given to the healthcare workers in India until seven years from after its outbreak.[8]  The Ebola Outbreak of 2014 saw deaths of millions, but more than 500 healthcare workers lost their lives during these times.[9]

All these instances, including the current COVID-19 pandemic, are repletion of one fact alone, that is, better facilities and rights for the frontline workers are the need of the hour.

Challenges faced by frontline workers-

As mentioned earlier, the duties which the frontline workers have to perform during pandemic, are in addition to their routine work. These workers are basically doing two jobs side-by-side, where the workers often have to neglect their routine jobs and focus on the more pressing issues, such as containment of the pandemic. Testimony of a frontline worker working with ASHA[10], reported her inability to attend to daily functions such as immunisation, childcare services, women health services, etc.[11] Many of the health care providers, due to the fear of catching the infection themselves, have decided to contain themselves within the healthcare facilities, and have stopped frequent visitations to their homes. Due to their professional responsibilities, they have to curtail the fear in their minds of getting infected themselves, and have to completely isolate from their family members. In addition to this, as per the Government guidelines, these healthcare providers are required to wear the Personal Protective Equipment (PPE) whenever they are within proximity of COVID-positive patients. However, as per the submissions of many of these workers, owing to the current climatic conditions, it is impossible to wear the PPE kit for more than seven hours straight. Although the PPE kit is essential for the safety of these workers, they are highly inconvenient, as the workers are not even able to use the toilet wearing the kit.[12] All these instances, are definitely taking a toll on the mental health of these frontline health workers. The workers continuously have to side-line their apprehensions and fears and have to pull themselves up for the safety of the citizens.

Recognised rights of frontline workers-

During the earlier times, the frontline heath workers were always the silent sufferers, when it came to claiming their rights. But not anymore. During these difficult times, the workers have not shunned away their responsibilities, and are bravely volunteering themselves for the care of others, but this time with demand of proper care. Various worldwide movements are reported where it is seen that the frontline workers have organised systematic strikes to ensure greater security. In Illinois, nurses went on a planned strike resulting into higher base wages, hazard pay, fully paid sick leaves for COVID-19 testing, and the right to refuse working without PPE kits.[13] In Washington DC, a draft proposal of Essential Workers Bill of Rights has been passed. This bill is based on the underlying assumption that the frontline workers have the risk of contracting COVID-19 at a pace quicker than the general strata. Amongst other things, the bill focuses on health and safety precautions in terms of proper PPE kits to be provided to the workers without any extra cost, adequate compensation for the essential work done over and above their regular wages, fully paid sick leaves for the workers, their families, and their dependents without excessive paperwork, protection to the whistle-blowers who report infected colleagues or unsafe working conditions, proper support for child care, complete accounts of how the funds allocated to organisations are utilised, etc.[14]

As per the guidelines issued by the World Health Organisation, following have been listed as the recognised rights of the frontline workers-

·       Availability of PPE kits for minimising the occupational safety and health hazards.

·       Providing adequate information and training to the workers regarding usage and disposal of the PPE kits.

·       Provision of trainings for the workers regarding conduct of testing and treatment of patients in a safe manner.

·       Having a blame free environment, where the workers are freely able to report notable instances.

·       Having appropriate working hours and break time.

·       Right to refuse to work in environments which have become hostile and extremely hazardous to operate in.

·       Right to appropriate compensation.

·       Right to demand counselling sessions, and mental health awareness programmes.[15]

Situation in India-

In India, the positive cases are at all-time rise, and the responsibility on the shoulders of frontline health workers is heavy. Right from preparedness of hospitals in terms of intensive care facilities, availability of ventilators and isolation wards, and other supportive equipment, the healthcare workers have their hands full. However, the weak link in terms of demand for health care and supply by the frontline workers has been the unavailability of the PPE kits. There have been reported instances, indicating a shortage of PPE kits, which has not only reduced the pace of functioning of the workers, but has exposed them to a greater risk. Initially, India solely depended upon foreign exporters such as China for the PPE kits. Due to disruption of the international supply chain, immense roadblocks were created. Many of the frontline workers, had to share or reuse the PPE kits, defeating the whole purpose of isolated usage. Owing to the situation, thousands of healthcare workers contracted the disease, and many even lost their lives. The Government recently announced that the production of PPE’s has been started in the homeland, and has been increased to production of 2 lakh PPEs per day.[16]

As seen earlier, a considerable percentage of the frontline health workers are also in form of contract labourers, and Frontline Working Organisations such as ASHA. Since the Government, is not responsible for the contract labourers, these workers are often left high and dry although their efforts are equal if not more. These ASHA workers, have gone on record to state that they have received no formal training from the Government or any healthcare institutions for dealing with the COVID-19 patients. Most of their knowledge comes from WhatsApp forwards, and the articles they are able to procure online. Many a times, they don’t even know if they are officially deployed on the frontline, but have assumed their responsibilities regardless.[17]  The Circular issued by the Ministry of Health and Family Welfare on Guidelines for Rational Use of PPEs enlists the ASHA workers to be having low risk of infection, and therefore the only PPEs allocated to them are triple layer masks, and gloves. As a result, the ASHA workers are at the mercy of the gram panchayats or municipal corporations for provision of safety equipment. It is often found, that there is shortage of even the masks or the gloves which have been sanctioned to them by the Government, due to which these workers often reuse the same. In addition to this, the Government has announced only Rs. 1000 extra to these ASHA workers for COVID-19 survey conducted by them, which evidently is very less. In pursuance to the above, Amnesty International India has made the following demands from the Indian Government on an immediate basis-

·       Proper PPE kits for all ASHA workers, and a continuous supply thereof.

·       Decent wages for COVID-19 related work conducted by these workers.

·       Treatment and compensation for loss of work for the ASHA workers who have contracted the virus.

·       Provision of social security benefits such as the Employees State insurance, Employee Provident Fund, etc.

·       Adequate training and awareness programmes for the knowledge and benefit of these workers.

·       Bringing the ASHA workers within the definition of ‘worker’ as provided under various labour laws.[18]

On 20^th April 2020, the Department of Health and Family Welfare issued a Circular with regards to the Measures to be Undertaken to Ensure the Safety of Health Workers. The workers who were recognised within the Circular were doctors and health professionals working in Government and private hospitals, and the ASHA workers to a limited extent. This Circular provided for use of hydroxy-chloroquine for healthcare workers with confirmed positive status of COVID-19. The Circular also provided for more than five lakh PPEs to be supplied to various Government hospitals, and timely payment to frontline workers such as ASHAs and those working outside the Government sector. The Circular also spoke of psychological support to be provided to these workers. Trainings and clinical management programmes were also to be provided to the workers for their effective understanding and knowledge. The Circular also released various websites and YouTube videos which included detailed guidelines to be followed by the ASHAs and non-government workers as well. The Circular encouraged the workers to take up various courses uploaded on the Government portals for their own understanding. An accidental insurance cover was also to be provided to these healthcare workers.

Conclusion

On 22^nd March 2020, Indians clapped their hands in appreciation for the relentless efforts shown by the frontline workers. While this boosted their spirits, did it necessarily promise them safety? The frontline workers have been the backbone on which the entire society is living. Although the Government is currently coming out with numerous schemes every now and then, which could benefit the government and the non-government frontline workers, clearly, they are not in parallel with the magnitude of the virus. Due to the contagious nature of the illness, the frontline workers are highly susceptible to risk. Therefore, considering the above, the highest level of protection and care must be allocated to all kinds of workers deployed at the frontline presently. It is understandable that due to the shortage in the supply of PPE kits, a uniform method of providing the kits to all healthcare facilities across India would not be possible, but some method of alternate supply needs to be adopted. As per a survey, up to 70% of the health workforce are women.[19] Hence, certain laws keeping in mind the gender segregation in the labour market have to be made. Speaking about labour laws, this is definitely not the time to shun away protection to the unorganised sector such as the ASHA workers under the garb of law-enforcement. It is necessary, that all provisions and facilities made available by the Government for workers to be uniformly available to all. Inclusivity of the workers withing various labour laws, thereby gaining protection thereunder should be done. A mass sensitisation programme also needs to be conducted, whereby the general strata shows greater compassion and accommodation towards the frontline workers, so that instances such as violence and harassment against the healthcare workers as seen in some parts of the country can be prohibited. The Government has addressed this issue by passing an ordinance to protect the frontline workers by making this action a non-bailable offence with maximum punishment of about seven years imprisonment and Rs. 5 Lakhs fine. An itemised account of funds allocated for the care and protection of the frontline workers, is not only the right of these workers, but of the citizens of India at large. Similarly, an above industry standard pay scale has to adopted for these workers who are not only working overtime, but are risking their lives while doing so. Provision of various welfare schemes, such as progressive insurance coverages, provident funds, pensions, and over time allowances are the need of the hour. The frontline workers should also have a proper mechanism of seeking redressal and having their voice heard without the element of fear. Amongst other things, the right of refusal to work should also be provided to these workers. Even though these are pressing times, it is required to honour the choice of these professionals and respect their decisions with regards to not choosing to work.

The Right to Health and Healthy Environment is a fundamental right guaranteed by Article 21 of the Constitution of India[20]. Within the realm of the Constitution, are also these frontline workers who also deserve equal protection. If a proper web of rights is created for the protection of frontline workers now, it could serve as a ready reference for the years to come. In pursuance to this, a Bill such as the one proposed in Washington DC would be an effective solution.[21]

It is time for Indians, citizens and the officials alike, to literally join hands not just for clapping, but for helping the frontline workers better serve the society for the sake of humanity at large.

The post Rights of Front Line Health Workers during Pandemic appeared first on Legal Desire Media and Insights.

Electronic media has become the oxygen for today’s existence. Even during these difficult times, the electronic media houses would always find something to report. But can the media houses report something, if it doesn’t belong to them? This is where the concept of intellectual property steps in. In the age of forwards, and constant online engagement, a little room is left for privacy of individuals, and honouring the ownership of other’s soft property. The question which then pops up, is, firstly what is the relation between intellectual property and electronic media, and to what extend can the intellectual property of others be exploited by the media companies? Hence, it becomes necessary to understand the position of enforceability of intellectual property vis-à-vis various e-medias.

WHAT IS INTELLECTUAL PROPERTY?

The word ‘intellectual’ can be defined as the original creation of one’s mind. The word ‘property’ implies an asset which can be owned, possessed, leased, or can be assigned for the use of other. Thus, under intellectual property, a person uses his own intellect, to create a belonging, which is unique and distinctive from others. As a result of this creation, these creators are called the owners of that intellectual property. By virtue of this ownership, certain consequences flow, due to which others cannot simply copy these creations without permission of the owners. The rationale behind this is, these original pieces of intellect are unique creations of these owners, which they have prepared through their own sweat and toil by putting in their money, efforts, and thoughts. Depending upon the nature of the creation, protection in terms of trademarks, copyrights, patents, industrial designs, plant varieties, geographical indications, etc. can be sought. This entire process, has led to the growth of many industries, including the electronic media industry, by encouraging innovation and development, by showcasing the works of many.

WHAT DOES ELECTRONIC MEDIA CONSIST OF?

According to Gloud and Kolb, “electronic media includes all the impersonal means of communication through which visual or auditory messages are transmitted directly to the audiences.”[1] Simply put, electronic media includes any type of media which uses the electronic technology to its advantage. It may include, but is not restricted to, radio, internet, fax, DVDs, television, or any other medium which requires electricity as well as digital encoding. But for the sake of simplicity, electronic media can be divided into the following broad categories-

·       Broadcasting media (E.g. TV, radios)

·       Storage media (E.g. DVDs, cassettes)

·       Internet media (E.g. Internet websites, applications requiring internet)

By the virtue of industrial revolution, today we see extreme development in areas of technology and communication. Use of visual means, to support mouth-to-mouth communication has enabled reach to a wider spectrum of population. As per a report by UNESCO, electronic media is known to develop the following aspects of a nation, entertainment, debate and discussions, education, socialisation, dissemination of authentic information, integration, etc.[2] However, there is no one particular law clearly defining what entails to be electronic media. Through various case laws such as K. K. Birla vs. The Press Council of India[3], where the judiciary held that a great deal of freedom of speech and expression of individuals is related to mass media, and the case of Secretary Ministry of Information and Broadcasting, Government of India and others vs. Cricket Association of Bengal and others[4], where the Supreme Court observed that it is absolutely essential in the interest of the general public and also to avoid confusion, that the Parliament should take steps to enact a law which shall govern the electronic media.

In spite of not having any specific law for governance of electronic media, there are various other laws such as the intellectual property laws which get intertwined in imposition of electronic media, and regulate the conduct thereof.

RELATION BETWEEN INTELLECTUAL PROPERTY AND ELECTRONIC MEDIA-

With the emergence of 20^th century, an impetus was received by the media sector, which pushed its growth across borders. With the advent of technology, and the idea of global connect, and integration of world with the help of information has become possible. Various treaties like Berne Convention on Copyrights, Rome Convention, Patent Cooperation Treaty, Madrid Protocol, were entered into to facilitate the exchange of intellectual assets across national boundaries. Grant of exclusive licenses to exploit intellectual properties was granted and promoted. This information sharing brought the world closer, but has also raised certain important questions about accountability and extent of usage of data. Intellectual property has always been at the centre of media rights, and has continuously ensured effective protection to the owners of such media products. However, the only and the biggest downside to technology, is that it allows copying, transfer, and manipulation of information and intellectual property easily.[5] If the sources of the information gathered from or not evidently displayed, anyone can pass off the work of another as their own. Since the spectrum and range of electronic media is so vast, it often becomes difficult for the owner to keep a track of who actually has access to his work. Even if the owner does know who has access to his work, it is quite expensive and rigorous for him to actually take action against the copycat. However, it is technology itself which also provides effective and more efficient ways of tightly controlling the distribution of the owner’s work. If utilised appropriately, technology can be used to limit and monitor the access which the owner provides.

KINDS OF IP TRIGGERED IN VARIOUS KINDS OF E-MEDIA-

By and large, trademarks, patents and copyrights are the most used and exploited intellectual properties which have role to play in the electronic world. However, a segregated understanding of which intellectual properties assume importance in which kind of electronic media, would be beneficial-

1.     Broadcasting media-

As per the Copyrights Act 1957[6], a broadcast means, “any communication to the public either by means of any wireless diffusion, or by wire, and also includes a re-broadcast.” Hence, as per this definition, any organisation, which is employing means to communicate to the general public by using the specifications mentioned would be considered broadcasting media. Hence, the main intellectual property getting triggered under this media type would be copyrights. Generally, companies engaged in television media, and radio would be considered broadcasting media. Section 37 of the Copyrights Act deals with the rights of broadcasting organisations. Usually, this special right subsists for about 25 years from the beginning of the calendar year next following the year in which the broadcast is made. Then, Section 31D allows the broadcasting organisation to broadcast already published works, subject to specified conditions.

While it is necessary to consider the rights of broadcasters, it is also important to look at the sections in favour of the copyright owners. It is essential for the media houses to know and honour the author, whose work they are utilising and publishing on their mediums. Hence, it is important to understand the differentiation between author and owner of a copyright, as the media houses while utilising such copyrights have to look at the same. As per Section 17 of the Copyright Act[7], primarily, the author is considered to be the first owner of the copyright. However, as the copyright falls into the hands of others, its ownership changes. Generally, for the works which are made in the course of employment or under a contract of service, the employer would be the first owner of that copyright.[8] For a musical work, the first owner would be the composer. However, if such work is commissioned by another, for example by a film producer, the film producer would become the owner of the copyright only to the extent of using the work for the purpose for which it is commissioned. The producer of a movie would only get a right to incorporate that music, and the remaining rights rest with the music composer himself.

Another category of intellectual property having importance in the broadcasting media, would be trademarks, since a great deal of work in broadcasting is with regards to having a unique name for their content. Trademark can be any a sign, symbol, phrase, or any other indication which can identify the source of the concerned goods or services. A trademark can be used to distinguish the goods or services offered by one entity from those of the other. By and large, there are two essential characteristics of a trademark, distinctiveness and non-deceptiveness. Trademark could be distinctive only when it is non-descriptive in nature, wherein the mark does not simply describe the goods or services which it represents, as in the case where the Trademark Office refused registration of a podcast name as, “serial”, since it was too obvious in nature.[9] In terms of non-deceptiveness, there could be two types of deceptions. First would be deceptive similarity covered under Section 2(1)(h) of the Trademarks Act[10] and second could be miss-description covered under Section 2(1)(a) of the Trademarks Act[11]. For example, in Horlicks Ltd. and another vs. Heinz India Private Ltd.,[12] the court established that advertisement of two products would be deceptive if the consumer is not equipped with the knowledge to distinguish between the two competitors. Secondly, a trademark would be said to have false trade description, where a misleading or untrue image is portrayed of the goods or services through the trade name.

2.     Storage media-

Storage media mainly includes organisations which are into the reproduction, downloading, and making copies of intellectual assets. Various means such, DVDs, hard drives, pen drives, floppy, cassettes, etc. could be employed for the same. Hence, the companies which are into the manufacturing, supply, and use of these means would come under the ambit of storage media. The Intellectual property type which would be of significance here would be undoubtedly copyrights, since the works which are stored in these devices would be copyrighted works. What is almost synonymous with the ownership of a copyright, piracy of copyright. In the age of technology, people try to make quick buck and avoid payment of legitimate taxes and royalties and instead go for a pirated material, instead of the copyrighted works. In matters of piracy, not only is the government at loss in form of tax evasion, but the owner of the copyright is also at loss in terms of losing his association with the work. Routinely recorded music and video tapes of movies and television programmes are recorded, sold, and even distributed in many parts of the world without any compensation to the authors, publishers, and producers. In fact, it would not be wrong to say that with advancements in the techniques of recording and reproduction of audios, the pirate’s job has become rather easy.

What would also be important, are trademarks. Once the protected works of the owners are stored, and are subject to distribution, they are said to fall in hands of the public. Therefore, any competitor coming with identical trade name for their work, could affect the commercial gains of the owner negatively. It is hence very important for the media companies to understand the need to adopt a good branding strategy which can not only help them to convey information across, but would also catch the attention of customers. Therefore, while choosing a trademark, it is essential for the companies to go for a mark which is not only distinctive, and non-descriptive to the services that they are providing, but should most likely be a coined word (e.g. VIACOM 18), or at the most arbitrary (e.g. Fox TV) in nature.

3.     Internet media-

The internet-run industry is today booming, and is at an all-time rise. Internet media usually includes companies like social media organisations, applications running on internet, basically every organisation which employs internet as their prime source of income. This the electronic media category, where all the three categories of intellectual property would be of significance.

First, speaking about trademarks. In the digital era, where domain names have become the new identities, and are widely used not just for locating the online existence, but also for the purpose of advertisements, and commercials. This online presence of organisations, has also facilitated the online infringement of the goods and services owned by these organisations. Domain names can be considered akin to having a registered trademark. In terms of their acquisition, registration, and enforcement, they are quite similar to trademarks, and hence they often receive the same protection as trademarks. However, the main distinction and often the point of contention between the two is that, domain names are available globally, and trademarks have a national application. World Intellectual Property Organisation (WIPO), established a Joint Recommendation Committee[13] in order to resolve the contradiction between trademarks and domain names, and how trademark owners can use their marks on the internet. As per WIPO, in case of a conflict between a trademark and a domain name, the complainant has to establish three things, first that the domain name is identical to the trademark in question, second, the registered user of trademark does not have any interest in the domain name, and lastly, the domain name has been registered and is being used in bad faith. Hence, if a trademark owner is sufficiently able to establish these three contentions, he can bring out a suit against the domain owner. Provisions such as these, actually ensure the protection of non-digital marks, and also paves the way for creation of unique and plagiarism-free domain IDs. These independent domain IDs, are extremely important for the progress of e-commerce, and also establish the development and progress of one of the most important mediums of electronic media, being the internet.

In terms of copyrights, the social media companies are usually considered intermediaries, wherein they only host the works of others. Either the copyright owners publish their own works on social platforms, or people post the copyrighted works of others on social platform. In the case of Super Cassettes Industries vs. Myspace Inc. and Anr.[14], the court held that a social media platform like MySpace although acting only as an intermediary, cannot be allowed to be privy to content being posted on their platform which is a copyrighted material of another without the permission of such copyright owner. Such an act would amount to infringement. Hence, the court held that regarding the material which is uploaded on the platform of MySpace, the social media company needs to check the ownership and validity thereof. As and when, any copyright owner informs the social media company regarding their copyright over a material which is available on their platform, they should promptly take it down.

Lastly, speaking about patents, within social media technologies, a patent can lie over a broad spectrum of things, such as privacy settings, augmented reality, reduction of processing power, to automated suggestions, to improved network connectivity, integration with other applications, etc.[15] Social media companies usually benefit enormously when they chose to patent their technology, because it not only gives them a leverage over all of their competitors, but also gives them an added layer of protection against any chances of reverse engineering. Patented technology can enable the companies to gain loans by collateralising the same. Not to mention the royalty or the licensing fees that they could receive by assigning such patent to others. Not just the social media technology, in fact any technology which the electronic media can use to better themselves, can be patented and brought within the ambit of legal protection. Perhaps the only downside to patenting is, that the specifications of the technology will go into the public domain after 20 years of the registration of the patent.[16] However, considering the fast pace at which the technological advancement in our country is happening, the patenting company would easily be able to develop new technology, and patent it then, or create noticeable developments in their existing patented technology.

CONCLUSION-

 By virtue of industry 4.0 that we are living in, electronic media has taken over most of our functionalities. We are dependent upon various electronic medium for our daily necessities. As the world progresses, space needs to be created for authentic sharing of information, and an environment of greater accountability. While the electronic media organisations operating within the industry are booming day by day, they need to be aware of the intellectual legislations which are applicable to them. Gone are the days, where they could only worry about post-mortem effects of their functions. Intellectual property is assuming greater importance today, wherein a single infringement can take down the entire organisation. Therefore, for the sake of development within the electronic media industry, and for the sake of innovation, intellectual property needs to be given the utmost priority.

The post Intellectual Property and Electronic Media appeared first on Legal Desire Media and Insights.

The past three decades, have seen a tremendous growth in the media and broadcasting industry. A lot of credit for the same has to be allocated to the latest technological advancements, the age of the internet, and increasing talent been showcased by creators. Gone are the days, when the broadcasting and media houses had to scavenge through a large pool of people to select the right face, now, they are simply spoilt for choice. With the advent of social media, almost everyone gets inspired, and decides to share their original works on public platforms. However, when such works are shared amongst the general public, questions regarding originality, and accountability arise. Along with that, counterfeiting, and blatantly copying of original works of others are also problems which crop up. These problems leave the media industry often crippled, and if not dealt with properly, may even lead to their downfall. Hence, it is important to understand what are the rights which the media houses being a broadcaster have over the intellectual property of their contributors, and how can they be enforced.

What is broadcasting, and who is a broadcaster?

As per the Merriam Webster Dictionary, to broadcast means, “to send out or transmit something, such as a program by means of radio or television or by streaming over the internet.”[1] In India broadcasting is managed by the Ministry of Information and Broadcasting, which is liable for controlling all substance to be communicated on private satellite TV stations and transmitted through digital TV systems.

According to the Berne Convention[2], broadcasting means, “emission by wireless means, for members of the public.” As per the Copyrights Act 1957[3], a broadcast means, “any communication to the public either by means of any wireless diffusion, or by wire, and also includes a re-broadcast.” However, what is nowhere defined is the concept of ‘broadcasting organisation.’ With the kind of advanced technology that everyone has these days, through mediums of smart phones, tablets, and computer devices, anyone can be a broadcaster by uploading, livestreaming, downloading, recording, their own content. Therefore, it becomes difficult to differentiate between an individual copyright holder broadcasting his own work, and a broadcasting organisation, broadcasting the copyrighted works of others acquired through a statutory license. Hence, based only on the definition of ‘broadcast’, following would be considered as broadcasters-

·       Individual copyright holder, broadcasting his own works

·       Government broadcasting companies (E.g. Doordarshan, All India Radio, etc.)

·       Private broadcasting companies (E.g. Zee Entertainment, Dish TV, etc)

·       Internet broadcasting companies (E.g. Alt Balaji, Netflix.in, Youtube.com)

What are the rights of the broadcasters?

Primarily, it is the Copyrights Act of 1957 which speaks about the rights of the broadcasting organisations. Generally, it is the author or the other owner of the copyright, who can authorise the performances or presentations of his copyrighted work on a public platform. The Copyrights Act was amended first in 1994[4] and later in 2012[5] to extend the scope of rights which were available with the broadcasting organisations. Essentially, what the broadcasting organisations have is a special kind of right. They do not have a right over the copyrighted material, but have neighbouring rights over that broadcast in itself. Section 37 of the Copyrights Act deals with the rights of broadcasting organisations. Usually, this special right subsists for about 25 years from the beginning of the calendar year next following the year in which the broadcast is made.

Broadcaster’s right to statutory licensing (Section 31D)-

Through the 2012 Amendment, Section 31D was introduced. This section allows the broadcasting organisation to broadcast already published works. But this has to be done subject to certain conditions prescribed within the section –

a)     The broadcasting organisation has to give prior notice to the copyright owner in a prescribed manner indicating its clear intention to broadcast such work, stating the duration and jurisdiction of such broadcast.

b)    The broadcasting organisation has to pay royalty at the rate decided by the Copyright Board.

c)     Royalties may include an advanced payment to the owners of the copyright.

d)    Names of the authors have to be clearly announced and shown during the broadcast.

e)     Except for technical alteration, and shortening of the work, no other alteration can be made without the consent of the copyright owners.

However, while a case is in dispute, the Court is not empowered to direct the deposition of a sum with the Court to grant the Broadcasting Organisations a right to exploit the copyrighted works to gain a commercial advantage, till the case is decided, as that would amount to grant of compulsory license, which is outside the Court’s purview.[6]

Section 31D was challenged to be unconstitutional in the case of Super Cassettes Industries Limited vs. Union of India[7], wherein it was argued that the section gives unfettered powers to the broadcasting organisation to obtain a statutory license, whereas, the same power does not rest with the copyright holder. However, the court after careful analysis, found no meaning in declaring the section to be unconstitutional, and stated that, these provisions have been included within the Copyrights Act to have balance of power, by letting the music labels to collaborate with the broadcasting organisations by obtaining licenses, to make copyrighted works available to the general public.

Various representations were made in front of the Ministry of Commerce and Industry, indicating that internet broadcasting companies should also be brought within the purview of Section 31D of the Copyrights Act. Therefore, the Ministry of Commerce and Industry after careful examination, stated that since the section allows any broadcasting organisation desirous of communicating to the public to obtain statutory license, it is not restricted only to radio and TV broadcasting organisations, and would include all kinds of broadcasters, including internet broadcasters. Therefore, through an Official Memorandum published on 2016, the government brought the internet companies into the ambit of Copyrights Act. Later the validity of this Circular was challenged at the Bombay High Court, in the case of Tips Industries Limited Ltd. Vs. Wynk Music Limited. and another. In this case, Tips Industries Limited was the copyright owner of about 25,000 sound recordings. Wynk Music Limited, which is an online music streaming application, had sought a contractual license from Tips for its online streaming services. When it came to renewal of the said license, due to some internal qualms, the deal could not materialise, after which Tips Industries Limited issued a cease and desist notice to Wynk for immediate deactivation and removal of their content from Wynk’s online platform. In reply to that notice, Wynk took support of Section 31D of the Copyrights Act and the 2016 Official Memorandum, and held that they were a broadcasting organisation by virtue of this section, and therefore they were entitled to a statutory licence thereunder. While dealing with this case, the Bombay High Court stated that Wynk cannot be allowed to continue using the sound recordings of Tips Industries Limited without their authorisation. Wynk would not be allowed to gain any commercial advantage out of this failed deal, without the permission of Tips. Court noted that the Official Memorandum is in contrast to the Government’s own stand on the matter taken in the report of the Standing Committee on Copyright and Related Rights, negotiation the proposed broadcaster’s treaty by WIPO. Hence, this judgement overruled the Circular, and thus excluded internet broadcasting organisations from the ambit of the Act. This way, the copyright owners now are placed at an equal footing with the broadcasting organisations, whereby, in absence of any valid agreement between the two, the case would always be decided in favour of the former.

Reproduction of Broadcast versus Re-broadcast-

Broadcast reproduction and re-broadcast, are both essentially rights which the broadcasting organisations hold. Section 37 of the Copyright Act gives the broadcasting organisations an exclusive right called as broadcast reproduction right. As per this right, the broadcasting organisations have a right to reproduce the broadcast for a period of 25 years from the year next following in which the broadcast was first made. Hence, this implies the following timeline-

·       Creation of a copyrighted work by an individual

·       Obtainment of statutory license by broadcasting organisation under Section 31D

·       Broadcasting the work obtained through such a licence by the broadcasting organisation

·       Reproduction of such broadcast by the broadcasting organisation

Since the Copyright Act does not mention what exactly amounts to reproduction, the definition given by Rome Convention[8] can be looked at, which says that ‘reproduction of a broadcast means making copies of the work or copies of such broadcast.’

As per the definition of broadcast within the Copyrights Act, a re-broadcast is included within the definition of a broadcast. However as per Section 37, any person other than the broadcasting organisation or other licensed holder, if re-broadcasts the broadcast made by the broadcasting organisation, such an act would be considered as infringement of the broadcast reproduction right of the broadcasting organisation. Hence, the following timeline can be established-

·       Creation of a copyrighted work by an individual

·       Obtainment of statutory license over such copyrighted work by a broadcasting organisation under Section 31D

·       Broadcasting the copyrighted work by the broadcasting organisation

·       Re-broadcasting of the broadcast made by the broadcasting organisation without the permission of the broadcasting organisation or the copyright owner

Therefore, we can see that, if a re-broadcast is done by the broadcasting organisation itself, it is not considered illegal, but if the same act is done by any other person who is unauthorised, the same amounts to infringement. As per the Rome Convention, re-broadcast means ‘simultaneous broadcasting of a signal belonging to some other broadcasting organisation.’

Exclusive rights of Broadcasting Organisations-

The Courts in India while deciding cases of reproduction and re-broadcasting have kept the concept of public interest in mind. In the case of Star India Private Ltd. vs. Piyush Agarwal and others[9], Star India Private Limited had a statutory license of broadcasting the cricket matches organised by the Board of Control for Cricket in India (BCCI), for 72 hours from the actual cricket match taking place. BCCI on its own was in the habit of collecting certain information released by its viewers and fan base, such as ball by ball or a minute by minute score updates and match alerts, which it circulated amongst its viewers through mobile messaging services. Therefore, Star India filed a suit against BCCI for infringement of its exclusive rights. However, the court distinguished between the kind of information which is disseminated by Star India and BCCI. The court held that since match information and updates are essential facts which the public should know, BCCI cannot be prevented from disseminating such information. But, due to the agreement between Star India and BCCI, the court allowed BCCI only to broadcast such information after a time lag of 15 minutes from the actual broadcast. However, the court also specified the kind of information which BCCI can broadcast, and limited the same only to mobile messaging alerts, and mentioned that the original audio or visual recording cannot be used.

A similar stand was taken by the Delhi High Court in the case of New Delhi Television Ltd. vs. ICC Development International and another[10], wherein the court held that dissemination of information such as match updates is essential from the point of view of public interest, and hence the same can be done by other individuals or organisations who do not have an exclusive statutory license. But if they want to use such information, and footage from the matches in future, they would have to enter into statutory agreements either with ICC, or the broadcasting organisation which has been assigned the broadcasting and reproduction rights.

Hence, through these judgements, the courts have tried to dilute the exclusive rights approach which the Copyrights Act portrays in consonance with the WIPO regulations. Although the broadcasting organisations have a statutory license to broadcast the copyrighted works of others, it has to be kept in mind that the author’s autonomy can also not be thrown out of the window. The author is and always would be the first owner of the copyright, and would have an opportunity to display his ownership over such copyrighted work, by entering into other licensed agreements with organisations other than a single broadcasting organisation, unless of course the terms of the agreement with the first broadcasting organisation explicitly provides for grant of exclusive rights.

Further, a step ahead in preventing monopoly over sharing of information, the Broadcasting Signals Mandatory Sharing (with Prasar Bharati) Act of 2007[11] was passed by the Parliament. In pursuance of this Act all private broadcasters were required to share live television and radio feed with Doordarshan and All India Radio for events which had national importance. Doordarshan, was not allowed to showcase its own advertisements, and the broadcast was to be made after a time lapse of a few minutes.

Infringement of Broadcaster’s Rights-

The rights of the broadcasting organisations are said to be infringed, if any unauthorised person without proper approval from the broadcasting organisation does the following acts (Section 37)-

a)     Re-broadcast of the original broadcast

b)    Play the broadcast in public for payment of any charges

c)     Make a sound or video recording of the broadcast

d)    Reproduction of the recording mentioned in point (c)

e)     Sale or giving on rent or making an offer for sale of the recording mentioned in point (c)

In matters of the above acts, the broadcasting organisations have the following rights in terms of remedies against infringements-

·       Civil remedies- Infringement, damages, costs, accounts

·       Seizure of infringing copies

·       Penal provisions- Imprisonment and fine

However, Section 39 also speaks of certain acts which are not considered infringement of the broadcaster’s rights-

a)     Making a recording for private purposes, or for the purpose of teaching or research

b)    Use for reporting of current events or news

c)     Making necessary adaptations or modifications which do not amount to infringement of copyright

d)    Such acts which are mentioned under Section 52 of the act, being-

·       Making of recordings and copies by the broadcasting organisation using its own facilities, and for the work for which it has right to broadcast, and using that recording for archival purpose

·       Use of such recorded material for bona fired religious purpose or official ceremony held by the Central or the State Government (religious purpose also includes marriage procession and other social festivities during marriage)

These acts are considered as fair usage of the copyrighted material, and does do not amount to infringement.

Conclusion-

The entertainment and media broadcasting industry, is growing at a rapid pace, and is venturing into newer spaces every now and then. As this happens, newer challenges emerge which are a direct consequence of the rapid growth. The Courts in India, have always tried their level best to uphold the freedom of speech and expression of the content creators, and create a space where the copyright owners not only get acknowledgement for their works, but also have the opportunity to gain commercial advantage out of the same. While doing so, the courts have also tried to do a balancing act, by trying to benefit the broadcasting organisations, and thereby ensuring greater flow of information amongst the public, and also upholding the public interest by making certain broadcasts mandatory. Where, on one hand the courts have upheld the exclusive licensing agreements entered into by the broadcasting organisations, and on the other, they have tried to frame acts such as the Broadcasting Signals Mandatory Sharing Act for the benefit of the general strata. The exclusive rights approach, although seems against the interests of the copyright owners, would not necessarily be so, as that would mean streamlined broadcasting by just one broadcasting organisation, and allowing that organisation to protect the individuality and exclusivity of the copyrighted work. Since the broadcasting organisations have greater resources for enforcing the rights over such broadcast, they are in a better position of negotiability, and protection of the copyrighted work of the author. Naturally, if there is any mischief on part of the broadcasting organisations, either in terms of the royalty paid, or in terms of any other attributions, the doors of the courts are always open for the copyright owners.

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The word ‘intellectual’ can be defined as the original creations of one’s mind. The word ‘property’ implies an asset which can be owned, possessed, leased, or can be assigned for the use of other. Thus, under intellectual property, a person uses his own intellect, to create a belonging, which is unique and distinctive from others. As a result of this creation, these creators are called the owners of that intellectual property. By virtue of this ownership, certain consequences flow, due to which others cannot simply copy these creations without permission of the owners. The rationale behind this is, these original pieces of intellect are unique creations of these owners, which they have prepared through their own sweat and toil by putting in their money, efforts, and thoughts. Depending upon the nature of the creation, protection in terms of trademarks, copyrights, patents, industrial designs, plant varieties, geographical indications, etc. can be sought. This entire process, has led to the growth of many industries, by allowing them to reap the benefits of exclusive control. When one talks about exclusive control over intellectual property, what is also synonymous with it is exploiting one’s intellectual property for one’s own benefit. This process of earning revenue by leveraging one’s own intellectual assets is called commercialisation of IP. In today’s times, it is absolutely essential for a business to have an up-to-date IP profile, and use adequate means so as to capitalise these assets, and integrate the returns arising from them in their financial planning.[1] This article seeks to identify various aspects of IP commercialisation. One of the integral aspects of effectively commercialising one’s intellectual property is keeping a tab on renewals. As we all know, intellectual property usually has a shelf life in terms of their protection. If not renewed, they fall within the public domain, and which results into loss of right of the owners. Hence, in supplementing to the discussion of commercialisation, this article also studies the nitty-gritty is of IP renewals.

What is meant by commercialisation?

As per Cambridge Dictionary, “commercialisation is the organisation of something in a way intended to make a profit.” From the intellectual property viewpoint, commercialisation can be used as a means to raise one’s finances based on the intellectual assets, and thereby cause business growth. When one speaks about commercialisation of intellectual property, there are various internal and external clauses involved within the same. Internal factors such as the goals and objectives of the organisation, available financial resources of the organisation, risk appetite of the company, etc., and external factors such as the type of intellectual property, its usefulness from the public utility point of view, economic, social, political environment during such commercialisation, etc. are all factors which play a vital role in deciding the length of commercialisation of an organisation’s intellectual property.  IP commercialisation is divided into three primary categories such as-

·       Commercialisation by the owner

·       Commercialisation by assignments

·       Commercialisation by business partnerships such as licensing and franchising, joint ventures and spin-offs, and other business contracts[2]

Categories of IP commercialisations-

1. Commercialisation by the owner-

The owners, including an individual or a company to take their cause forward of commercialising their own intellectual assets by themselves. This decision can be taken by the owner either maybe because they have enough knowledge about commercialisation and marketing, and hence they believe that partnering with any third-party organisation just for the sake of commercialisation isn’t required, or the company or the individual does not have enough financial resources to partner with any other organisation, or simply the owner does not want to share the details of intellectual property with others. Although commercialisation by the owner might seem the right choice for the sake of privacy, and non-requirement of disclosure of secret information, it also comes with a lot of risk. Since the individual or the company owners are not IP experts, they might miss out on certain important legal prerequisites which are essential for effective commercialisation. As a result of this, if later the matter has to go into litigation, these owners might not be able to sufficiently make a good case out for themselves. Whereas, an IP expert, generally has an all-round knowledge of not just the legal sector, but the business environment, hence is in the best position to guide the owners from the protection point of view. However, if the owners by themselves want to pursue commercialisation, they should take into consideration the following points-

·       Ensuring secrecy of your ideas

·        Using IP databases available in the public domain, to understand if the idea of commercialisation that they have come up with is viable or not

·       Keeping up-to-date records of the flow of the intellectual property they are commercialisation

·       Making sure that all of their intellectual assets are well protected and renewed from time to time

·       Identifying entry points for litigation in case of infringement from any third party. In cases of infringement, alternative methods such as alternative dispute resolution mechanisms can be used to make the entire process less time consuming and more cost-efficient.[3]

2. Commercialisation through Assignment-

May it be the owners making an effort on their own, or taking help of any external agency, assignment, remains to be one of the most common modes of commercialising IP. Assignment of one’s own intellectual property to another involves disclosure of critical information regarding the IP to the assignee. Assignment simply means a transfer of intellectual property by way of direct sale from the owner to another entity. Within the realm of intellectual property, word ‘assignment’ is used interchangeably with the word ‘sale’. On assigning the intellectual property to another, the transferee gets all the benefits that are available with the owner of the intellectual property along with the liabilities attached to it if any. This assignment can take place either for an amount of money which can be paid on lump-sum basis including all costs for acquisition and protection of the intellectual property, costs of research and development involved, any outsourcing cost, etc. or it can be take place for exchange with another intellectual property. Various laws in India govern in intellectual properties, such as the Trademarks Act[4], Copyright Act[5], Patents Act[6], etc. Has provisions for assignment embedded within them-

·       Section 37 to 45 of the Trademark Act-

These Sections deal with assignment and transmission of trademarks.

·       Section 19 of Copyrights Act-

Within the Copyright Act, Section 19 requires the assignment of copyrights to be in writing and signed by the assignees and the assigner. Through Section 18, even copyright in a future work can be assigned, however the assignment comes into force only on the date of creation of the work.

·       Patents Act-

Under the Patents Act, an agreement is required embodying all the terms and conditions of the parties involved for the transfer assignment to take place. This agreement has to be registered by filing Form 16 under the Patents Rule 2003 with the patent office. Registration of this assignment has to be done either at the time of the assignment or after. As per Section 69 of the patents act, a non-registered assignment agreement is not eligible to be presented as evidence in the court of law.

·       Geographical Indications-

When it comes to geographical indications, them being public proprietary right, or not assignable or transmissible. Hence the Geographical Indications Act[7] prohibits the assignment thereof.[8]

3. Commercialisation by business partnerships such as licensing and franchising, joint ventures and spin-offs, and other business contracts-

·       Licensing-

Apart from the above obvious methods of commercialisation of IP, that is licensing, there are other methods such as entering into licensing or franchising agreements, entering into joint ventures and spin-offs and other business contracts. This can also be done either individually by the owner of the IP, or by associating with any third-party IP experts. Amongst these methods available, IP owners usually go for licensing, because it allows the owner to grant permission to another entity to use their IP for a certain period of time, and under agreed terms and conditions. Licensing not only ensures a regular flow of returns, but is an effective way for the owner to still retain their right over their IP, at the same time reap the benefits of commercialisation. Amongst other things, various benefits attached with licensing of intellectual property include income generation for the licensor without actually having to make heavy investments for generating revenue. Licensing usually does not require any registration, which is usually a prerequisite in assignment. Generally, the only costs which are involved are with regards to fees of IP experts, etc. Licensing is a very cost-efficient way in which a business owner can expand its operations by either exploiting the intellectual assets of other or allowing another entity to exploit its own intellectual assets. By collaborating with competitors, the owner is able to sufficiently broaden their reach, and cover a larger market by turning its competitors into partners.

Although licensing might look as a very lucrative opportunity for the owners, there are various challenges associated with the same. In order for the licensee to effectively utilise and exploit the intellectual assets, the licensor has to disclose certain key features of the intellectual asset, which increases the danger of the proprietary information being lost. At the end of the day, intellectual assets are the result of sweat and toil of the owner of such asset, which they have created through their own intellect. Come what may, the licensee will not have the same kind of attachment and motivation to protect the reputation of the intellectual asset as the owner would have. Hence, they may not be motivated enough to use the brand image of such asset appropriately. Unlike assignment, licensing usually does not require many compliance-oriented formalities to be completed. Although this as a boon, it can actually turn out to be a bane when it comes to enforcement of such licensing agreements.[9]

Apart from licensing, there are various other methods of IP commercialisation with intervention of third-party business transactions, such as franchising, entering into mergers and acquisition, joint ventures, etc.

·       Franchising-

In matters of franchising, the owner of the intellectual property, not just allows the other entity to use the intellectual assets, but also allows them to use the entire business ecosystem of the owner, and almost replicate the mannerisms of the owner. The concept of franchising is much bigger, and in fact encompasses the concepts of licensing. Amongst other things, some of the advantages of franchising are, that it is an excellent method for business institutions to expand their footprint across new are market segments. It is an opportunity for the owners to acquire fresh capital, without actually incurring any costs of their own. Apart from the revenue on utilisation of intellectual property, the owner can actually receive royalties over a lot of their business systems which they will allow the other entity to recreate. Having said this, some of the non-disadvantages of franchising are, reputational risks, vicarious liabilities, miss use of trade dress, etc.[10]

·       M&A-

Mergers and acquisition is an even broader concept than franchisee, wherein the intellectual property owner is actually either getting merged into a bigger organisation, or getting acquired by another organisation. In this process, not just the intellectual assets of the owner are consumed by the acquiring organisation, but the entire business framework is merged into the latter.

·       Joint Ventures-

Joint venture also runs on similar logic as merger, but the difference here is that the ownership of the owner of the intellectual property remains with them. Methods such as joint venture can be used by entities to collaborate on common points of interest such as intellectual property for specific periods of time, and after the purpose has been served, both the entities would go their separate ways.[11]

IP Renewals as a means to Commercialisation-

What are renewals? –

What lies at the core of intellectual property protection, are timely renewals. As a result of various legislations within our country that govern intellectual assets, the creators of such assets, are able to obtain a legal protection on their creations. However, these protection for these creations are only available for a said period of time. For instance, in India, protection over a patent is acquired only for 20 years, that over trademark is available for 10 years, that over copyright is available for 60 years after the death of the author and during the lifetime of the author, and protection over a design is acquired for 10 years. If the IP owners fail to renew their registration, the information so protected will fall into the public domain, enabling the general public to exploit as well as utilise the creations of the owners as per their whims. Not only this, the owners lose their right to enforce these intellectual assets in the court of law. In order to prevent that, various Sections within the IP regulations in our country have been incorporated. Thus, IP renewals can be considered a standard practice for keeping the intellectual property rights over the intellectual assets of a person in force.

1. Trademarks-

The Trademark Act of 1999 provides a protection for 10 years on trademarks. However, Section 25 of the act allows the owner to preserve protection over the mark by way of renewal. Application for renewal of a trademark has to be filed within six months prior to the expiry of the registration by payment of necessary and required renewal fees and filing of prescribed formats. The trademark office tolerates filing of application even after the expiry of the registration within six months by payment of late renewal fees in the prescribed format.

2. Patents-

Protection over patent is available for a period of 20 years. In matters of patent, it is absolutely essential for the owners to be on their toes when it comes to renewal because creation of patent usually requires extremely costly research and development, and years of hard work. Therefore, to let the patent fall into public domain is complete disaster for the owner. Section 53 of the Patents Act deals with the renewal of patents. If the patent is granted after two years from the date of application of filing, the first renewal becomes due after the third year, which the owner will have to pay for before the second year gets expired.

3. Designs and copyright-

In matters of copyright, usually the concept of renewal does not assume popularity, since as it is copyright protection is available during the lifetime of the author plus 60 years from the date of death of the author. This is enough time of protection available to the author. In matters of design, protection is available for 10 years from the date of registration. As per the Design Act, the validity of registration can be maximum extended for the next five years on renewal.[12]

The case of M/S Epsilon Publishing House Pvt. Ltd. vs. Union of India[13], spoke about procedural delays, and its effect on renewal of trademarks. Here the main issue in contention was whether procedural delays by the Trade Mark Registry can hamper the privileges of the proprietor to renew his trademark? Certifying the opinion of the Single Judge, the Division Bench of the Delhi High Court took note that procedural delays on part of the Trade Marks Registry can’t be an obstruction on the rights of the owner of a trademark. The test was made by the Appellant, owner of the trademark Easy Notes, on the ground that since the reestablishment application for its trademark ‘LokpriyaEasyNotes’ was filed by the Respondent following a couple of days of its expiry, it was required to be joined by surcharge notwithstanding the recommended expense, which the Respondent neglected to pay. The Court dismissed the Appellant’s contentions and said that since the renewal application filed by the Respondent in the year 2011 was not taken up by the Registry for a long time, the delay was not brought to the consideration. Therefore, the renewal was permitted within the ambit of the law.

Conclusion-

The external stakeholders, such as Government and various other private players and institutions working for the cause of development, and industrialisation, have realised the importance of intellectual property, and the benefits that come out of effective protection and preservation of the intellectual assets. The external stakeholders have realised that the value and economic rewards for the owners of IP can only come from encouragement of commercialisation. In order to encourage consistent entrepreneurship, and financial development, then need was felt for promotion of existing mechanisms, and creation of new opportunities for the intellectual property owners to exploit the available resources. The regulations and legislations within our country, the Design Act for instance has given various lee-ways for encouragement of commercialisation, by not requiring the owners to pay any stamp duty in matters of assignment of designs. This, along with many such accelerators are available within the current regulatory framework which if identified correctly by the IP owners, can benefit them greatly. The National IPR Policy of 2016[14] promises amongst other things, an effective platform for commercialisation of intellectual property. It seeks to provide a uniform platform for IPR owners to be connected with potential users, and funding agencies. It seeks to undertake a detailed study to examine the feasibility of an IPR exchange. It seeks to promote public sector initiatives for IPR commercialisation. This and many other such benefits have been promised to through the National IPR Policy. If this IPR policy is made a reality, and converted into a feasible and accessible solution, commercialisation of IP can actually see the day of light, and will definitely change the status of our country from developing to developed.

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