Citation: D N, Sowmya and Paramashivaiah, P., Traditional Knowledge System – A Key to MSMEs Growth after COVID-19 (May 14, 2020). Juni Khyat ISSN: 2278-4632 (UGC Care Group I Listed Journal) Vol-10 Issue-5 No. 14 May 2020, Available at SSRN: <http://dx.doi.org/10.2139/ssrn.3652013>

Introduction 

The above captioned article has been written by Sowmya D N, a Research Scholar at the Department of Studies in Research and Commerce at Tumkur University and Dr. P. Paramashivaiah, a Professor & Research Supervisor, Department of Studies in Research and Commerce, Tumkur University. The article  discusses how the implementation or use of traditional knowledge for marketable determination might help MSMEs grow and develop holistically. MSMEs can continue with innovation and skill enhancement for sustained growth in India, according to the writers, if Traditional Knowledge (TK) is treated as commercial growth.

Status of Traditional Knowledge in India

The writers draw attention to how important traditional knowledge is by firstly addressing an analysis by World Health Organization that shows that most of the world’s population (80 %) relies on TK, which is heavily reliant on ancient medical methods to cure ailments. They further point out how TK can be misused if not protected properly and all these issues have been addressed by Traditional Knowledge Digital Library (TKDL). The writers use examples of neem (for medical uses) and jeewani (known by the Kani tribe for its medical uses and benefits, also particularly known for the aarogyapacha) to show that various kinds of TK have protection in India. The writers further refer to the well-known Turmeric Case as an example to show exactly why such protection is required.  The writers also point out that as many as 344 products in India carry the GI tag.

Salient Statistics about MSMEs in India

The writers highlight salient statistics about MSMEs in India:

• 33% of GDP is contributed by MSMEs to the Indian economy.
• 35% to Indian industrial exports are contributed by MSMEs Sector.
• India has more than 106 Lakh MSME units with an investment of more than Rs 1 Lakh Crore.
• There are 11 million MSMEs in India.  
• MSMEs in India produce more than 8,000 types of products 
• The MSME sector contributes 40% of the range of products produced in India. 
• India’s MSME base is the largest in the world after China.

After analyzing this data the writers believe that India would profit from supporting and funding required R&D, as well as from improving the dimensions of businesses to leverage existing knowledge. MSMEs in India are more than simply businesses; they are a significant element of the culture, tradition, and way of life.

Challenges for Indian MSMEs 

The writers believe that there is a lack of understanding of TK and IPR protection in India. They say that there are various challenges due to the upcoming environmental threats and consequences because of the dualistic development impact on resource scarcity. The writers  strongly believe that the country is underachieving in the potential aspects of research and innovation, which further has an impact on long-term and large-scale industrial competitive and economic growth. The other challenge put forth by the writers is that 90% of Indian workforce that is working in the unorganised sector are underemployed, have low-productivity and engage in low-skill activities. They pin this on the lack of infrastructural and financial resources for innovation along with the lack of skilled labour resources and labour attrition problem. The writers also point out that the flow of traditional knowledge is not focused on by the younger generation due to the dilemma of acceptance. Also, there exists a deficiency of convenient capital (both Human and Financial resources) and how there is an issue with a technology upgrade.

Opportunities for Indian MSMEs from Traditional Knowledge 

The writers agree that India will highly benefit by commercializing knowledge by establishing a strong ecosystem to create the capacity of smaller enterprises to engage it. The writers found the following outcomes after a conceptual study:

The government is encouraging MSMEs to get themselves registered on the National stock exchange. India’s growth drive is under threat due to the dualistic development through division of urban-rural, environmental threats that lead to scarcity of resources. The potential areas for increasing the competitiveness of MSMEs include technology, procurement, skills development and finance. The regime has to work with thin capital reserves. Government should help MSMEs by providing working capital facilities and providing employment and payment of wages. The small business that earns excess capital has taken out that excess capital of the businesses and applied it to personal assets because of the COVID situation.

Conclusion

The article is a review of the status of Traditional Knowledge in India and how MSMEs can help protect this TK along with monetizing it for the benefit of the country. The writers have analysed the various gaps that are created due to the non-seriousness and lack of knowledge about TK.

Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.

Copyright: ALG India Law Offices LLP

Introduction

To uniquely identify a product based on its geographical location of production, production technique, and quality, a Geographical Indication (GI) tag plays a pivotal role. One can easily identify “Darjeeling tea” and “Orissa Pattachitra” as unique products from the respective locations. Section 2(e) of the Geographical Indications of Goods (Registration and Protection) Act, 1999 (“GI Act”) defines GI as “goods … originating, or manufactured in the territory of a country, or a region or locality in that territory, where a given quality, reputation or other characteristic of such goods is essentially attributable to its geographical origin…”. The importance of GI is significantly pronounced for producers of such a unique product who generally constitute a tiny minority of the population. 

Who can apply for GI?

Section 11(1) of the GI Act states “Any association of persons or producers or any organisation or authority established by or under any law …representing the interest of the producers of the concerned goods” can apply for a GI tag. For any such organization claiming to represent the producers for a GI tag, Rule 32(6)(a) of the Geographical Indication of Goods (Registration & Protection) Rules 2002 (“the GI Rules”) states that the application should also contain “an affidavit as to how the applicant claim to represent the interest of the association of persons or producers or any organization or authority…”.

The intention underlying the GI Act’s Section 11 read with Rule 32(6)(a) of the GI Rules would indicate that only a class or group of persons or producers or an association representing the interests of the producers would satisfy the qualification criteria under Section 11 of the GI Act. However, there is no clarification regarding the claim made out in the Affidavit mandated under Rule 32(6)(a). While Section 28 of the GI Act deals with amendments to the Register, there is an absence of clause dealing with changes in the Affidavit. The Act does not place any onus on the Registrant to update the Registrar with respect to any subsequent changes, like the addition or removal of members, nor does it mandate submission of a further Affidavit in light of said change.

Why should private entities not be given a GI tag?

A private entity applying for GI came to light when Reliance India Limited (RIL) applied for GI tag of “Jamnagar” for its oil and gas. [1] The tag was never approved and RIL had to rescind the application. However, this application being forwarded until the advertisement stage points at the weak nature of the checklist used to consider a GI registration. Likewise, the application for Chinnor Rice [2] by a private entity is questionable in terms of the representation of interest. 

Another highly debated case is of “Tirupati Laddu” [3] where the temple trust filed and secured the said GI tag for laddus offered to God. However, the decision of the Registrar has been criticized as granting of this GI gives the temple trust exclusive right to use the GI for the Laddus and prevent other local businesses from selling similar laddus which runs contrary to the spirit of the GI Act. 

Another way that private entities may end up benefiting is by applying for a GI tag without the knowledge of the local producers. Such is the case of Subhash Jewellery v. Payyannur Pavithra Ring Artisans [OA/2/2010/GI/CH] [4]. Section 11(2) of the GI Act states the evidence is needed to show that the producers named in the application are actually “producers” as defined by the Act. The Applicant association had seven members out of which only two were artisans.

Why should private entities be given a GI tag?

However, it can be argued that private entities should be granted a GI tag in cases where they can prove that they represent the interests of the producers. Applications where a private entity proves beyond reasonable doubt that they have the support of the producers and the benefits from the tag would be shared with the producers in concern, should be considered. This would be especially helpful in cases where the producers are reluctant or unable to deal with the paperwork required for forming the organization and applying for a GI. Although this would act as a precedent for other private entities to try and misuse the GI label for their own benefits, inclusion of special provisions in the Act by way of periodic checks can prevent this.

Conclusion

The focal point of the GI tag is to let local producers enjoy the benefits from a mark of authenticity and quality. If there are private entities that can ensure the benefits of the GI reach these producers, then considering a GI application from a private entity should not be barred. However, there needs to be far more stringent measures in place to allow GI registrations to private entities, like streamlining of the mandated Affidavit under Rule 32(6)(a) or the introduction of a system of periodic check on the entities to ensure the benefits are received by the represented producers.

Endnotes

1. Reliance withdraws GI tag applications for Jamnagar and KG Gas, available at https://economictimes.indiatimes.com/industry/energy/oil-gas/reliance-withdraws-gi-tag-applications-for-jamnagar-and-kg-gas/articleshow/4995119.cms?from=mdr  Applications can be accessed at:

http://ipindiaservices.gov.in/GIRPublic/Application/Details/38 http://ipindiaservices.gov.in/GIRPublic/Application/Details/39  http://ipindiaservices.gov.in/GIRPublic/Application/Details/42 http://ipindiaservices.gov.in/GIRPublic/Application/Details/41  http://ipindiaservices.gov.in/GIRPublic/Application/Details/40

2. Application can be accessed at:  http://ipindiaservices.gov.in/GirPublic/Application/Details/663

3. R.S. Praveen Raj v. Tirumala Tirupati Devasthanams [ Rectification application No. 2 against Geographical Indications Application No. 121 Dated: 30.07.2012], available at https://spicyip.com/docs/Order-of-GI-Registry.PDF . See also, Grant of Geographical Indication Designation to Tirupati Laddu: Commercialization of Faith? Meghna Banerjee & Susanah Nausahd, available at http://nujslawreview.org/wp-content/uploads/2016/12/meghna-banerjee-and-susanah-naushad.pdf  

4. Subhash Jewellery v. Payyannur Pavithra Ring Artisans [OA/2/2010/GI/CH], available at https://www.legitquest.com/case/subhash-jewellery-v-payyannur-pavithra-ring-artisans/1425A9

Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.

Copyright: ALG India Law Offices LLP

Citation: Bashir, Bisma; Nasreen, Nahida; and Loan, Fayaz Ahmad, “National Digital Library of India: An Overview” (2019). Library Philosophy and Practice (e-journal). 2601. <https://digitalcommons.unl.edu/libphilprac/2601>

Introduction: 

In the article titled as “National Digital Library of India: An Overview”, the writers provide an overview of the National Digital Library of India (NDL India) to understand its advantages, features, and collection in the global digital space. The writers highlight that the Ministry of Human Resource Development (MHRD) established the NDL India to bring learning resources with a single window search facility for learners so that it reduces the consumption of time on searching research materials/ reading materials on various platforms. The text also sheds light on the enormous reading materials available in several languages. The text piece focuses on the technical functioning of the NDL India and the resources available on the website, followed by salient features and issues of the NDL India.

Service Architecture of NDL India: 

The text provides a detailed description of the structures of NDL India. As appears from the text, NDL India- one of the largest digital libraries, functions in a three-layered systematic manner, and avails filtered and federated searches to enable the users to find right kind of information with least efforts. The text also elaborates on the vast varieties of materials available on the portal.

Whereas there is no denial that accumulating a huge number of literature and availing the same on a same platform is a commendable job, done by MHRD, a practical experience on the website is not exceptionally smooth.  The excessive sub-division of all options available has made the website confusing and complicating. The main objective of the NDL India is to help learners/students to access materials across globe but accessibility of lot of good materials are restricted. Most of the materials which are available on the website are anyway freely accessible on internet. It is correct that accumulating all the materials under a single window platform does reduce the research time consumption, but the website itself seems not so user friendly which again lead to unnecessary time investment.  

Salient Features: 

As mentioned in the text, some of the salient features of NDL India are that the website is interactive and participative and provides a customized service in a 24×7 integrated environment where users can find out the right resource with the slightest effort and in minimum time. As noted from the text, NDL India combines contents from different Indian digital repositories, and functions mostly on metadata. Since the website functions on metadata and acts more like a search engine, all the results include wide range of resources which makes it difficult for users to reach to the most relevant material. Whereas NDL India does provide different ways to browse content like browse by content type, browse by source, browse by subject, browse by learning resource type, etc., but excessive sub-division of all options make the experience unpleasant.

Issues of the NDL India: 

The text further discusses some of the issues pertaining to NDL India. For instance, the text highlights the issues faced by the users while accessing materials which are restricted. The lack of sense of responsibility or ownership of NDL India is also can be understood from the fact that NDL India does not take any accountability for validity, relevance, inclusiveness, reliability, and suitability of the contents.  The text also discusses the importance of adopting advanced software, newer technologies to keep the functioning of the website smooth.  The writers correctly point-out, “The sources available in today’s technology can’t be used with tomorrow’s technology.” In a time like this when technology is an important part of our daily life, libraries (including NDL India) must invest in more technologies, to keep the website update and user friendly. From the earlier part of the article, we can understand that in one hand the NDL India aims to provide 24×7 integrated service to its user, but on the other hand the NDL India takes no responsibility of the portal being unavailable due to technical issues.

Conclusion: 

While the text does provide an overview of the NDL India as the title of the article suggests, the readers may leave with some unanswered questions. The article does not provide or recommend the solutions to the issues raised. All these issues are matter of concern and for the better accessibility of resources, MHRD should provide more financial support to NDL India. From technical advancement to availability of restricted materials – MHRD needs to focus on all of these.  

Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.

Copyright: ALG India Law Offices LLP

Introduction

With the speedy growth of digitalization, digital piracy has become common for the copyright holders and rights of these holders are often being affected either due to insufficient remedy or insufficient guidelines. Normally the aggrieved parties file for an infringement suit in a civil court seeking an injunction, to restrict websites from infringing trademarks or copyright-infringing data and then injunction is granted against the infringing party. But sometimes injunctions provided in such cases do not necessarily work the way they’re expected to. Often the infringing data is merely shifted onto a different database server and is then either re-uploaded or re-introduced onto another platform. Therefore in order to cope with the mechanism of the internet and in order to reinforce the right holders, a new type of injunction that is the dynamic injunction came to be introduced in some foreign jurisdictions to enforce digital rights. 

Section 151 of the Code of Civil Procedure (CPC) provides “Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.” The question arises – Does the framework of Section 151 of the CPC enable dynamic injunctions, particularly, in tackling cases related to digital piracy? Are dynamic injunctions “necessary for the ends of justice” within the meaning of Section 151? Are they required “to prevent abuse of process of the court” within the meaning of Section 151? 

Nature and origin of dynamic injunctions

Dynamic Injunctions as a legal remedy are recently developed as a modern strategy to curb the menace of the rising pirated websites by copyright holders. It is a type of injunction order made by a judicial bench of a court that allows copyright holders to appear repeatedly in front of the Joint Registrar of a court in order to extend the injunction order against mirror or rogue websites containing similar content as the original website. These types of injunctions were introduced as an advancement or modification to the conventional injunctions that blocked websites and which also could not provide adequate relief to the rightful holders.

Necessity for the ends of justice

Dynamic injunctions as a legal remedy have found their way into various jurisdictions across the world including India as well. In India, the relief was first granted in the case, UTV & Others. V. 1337x.to & others [1] which was delivered on April 10, 2017. In this case the Delhi High Court in order to grant a dynamic injunction, under Section 151 of Civil Procedure Code observed its inherent powers in order to put limitations on the websites which were reappearing with an altered name. The Court then encompassed a standing injunction to these new websites, which could possibly appear with a different label in the future. This judgement was delivered by citing case of Disney Enterprises, Inc. v. M1 [2] in which the High Court of Singapore granted a dynamic injunction and held that “the plaintiff was under no obligation to return to court for an order concerning every single IP address of the infringing URLs already determined by the Court.”

Preventing abuse of the process of the Court

In the UTV case (supra), the Court laid down certain conditions to identify sites as Rogue/FIOLs (Flagrantly Infringing Online Locations) for the purpose of extending the injunction. Therefore, the Delhi Court adopted the term FIOLs from the Singapore Court in the context of such websites. The court observed that these are those websites which primarily share the infringing content of the right holders and also whose registered details are also masked. Hence the conditions which were laid down by the Court were whether the website primarily intends at copyright infringement; whether the website hides the information of the registrant; and whether there is delay in taking down the copyright infringed content after receiving a takedown notice.

Pursuant to the UTV judgement (supra) similar orders have since been passed by the Delhi High Court in batch petitions filed by Warner Bros. Entertainment Inc. [3] and Snapdeal Private Limited [4]. The High Court of Delhi in these orders has observed that website blocking in the case of mirror or rogue websites stabilizes benefits between ‘free and open internet’ and ‘digital piracy ’. Dynamic website blocking is a measure to deal with the issue of dynamic infringement.  Still, this author is of the view that the court should pass dynamic injunctions only when it is essential. Otherwise, Joint Registrars in their administrative capacity will end up exercising judicial functions vested only in judicial benches. 

Conclusion

From the above it is clear that there is definitely a requirement for a mechanism like dynamic injunction in order to have a simple solution for the techno-legal complexities presented in digital piracy cases. The language of Section 151 of the CPC happens already to be broad and general enough to comprehend dynamic injunctions as being within its scope even if this statutory provision pre-dates the digital era. Therefore, it is permissible for the courts to apply the concept of dynamic injunctions to make sure that its injunctions are not easily circumvented by defendants. Such expansive interpretation of Section 151 of the CPC strengthens the adjudication process and keeps pace with the growth of the internet.

 References:

1.          UTV Software Communication Ltd. v. 1337x.to – Judgement dated 10-4-2019 in CS (COMM) 724/2017 and Ors. , Delhi High Court [Manmohan, J.]

2.          Disney Enterprises, Inc and others v. M1 Ltd and others [2018] – Judgment dated 19-09-2018 in SGHC 206, Singapore High Court [Lee Seiu Kin, J.]

3.          Warner Bros. Entertainment Inc. v. http.//tamilrockers.ws and others – Order dated 24-07-2019 in CS(COMM) 369/2019, Delhi High Court [Sanjeev Narula, J.]

4.           Snapdeal Private Limited v. Snapdeallucky – draws.org.in & Others – order dated- 20.07.2020 in CS(COMM)no.264/2020 & I.A.NOS.5848-52/2020, Delhi High Court [Rajiv Shakdher, J.]

Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.

Copyright: ALG India Law Offices LLP

Introduction

Political parties host numerous rallies before the elections begin and a common practice that is noticeable in these rallies is that they use various songs in these rallies. It is imperative to understand therefore whether the act of using songs in political rallies will infringe the rights of the owner of the song.

Who owns copyright in a song?

It is pertinent to note that the term “song” is not defined in the Copyright Act, 1957 (‘the Act’). Nevertheless, a song can be understood from two different angles. Firstly, when the song is produced as a separate album. Secondly, when the song is produced and used in a cinematographic film.

From the reading of sub-section (d) of Section 2 of the Act, author in relation to a sound recording means the producer. Further Section 17 of the Act states that the author of a work shall be considered as the first owner of the copyrighted work. It is evident that the producer will be the owner of the song. In case of songs being produced as a separate album the person or company who produced the song will be the owner. In case of songs being used in a cinematographic film, the producer of the cinematographic work will be the owner of the song as held in Indian Performing Rights Society v. Eastern India Motion Pictures Association and Ors. [1].

Does playing songs at political rallies infringe the owner’s rights?

This question would not arise if there is a license agreement between the owner and the political party using the song. For this article, it has to be assumed that there are no license agreements between the owner and the political parties. In absence of a license, if the song is used directly by the party it is prima facie infringing the copyright in the song. However, it has to be assessed whether such use by a political party falls under any of the exceptions provided in Section 52 (fair dealing) of the Act. From a reading of Section 52, it can be assessed that there is no provision under this section that permits the use of a song for political rallies.

However, the Delhi High Court in Chancellor Masters & Scholars of the University of Oxford v. Narendra Publishing House and Ors. [2] said that “Section 52 of the Act only details the broad heads, use under which would not amount to infringement. Therefore, the resort must be made to the four-factor test:

        i.            “the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;

      ii.            the nature of the copyrighted work;

    iii.            the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

    iv.            the effect of the use upon the potential market for or value of the copyrighted work.”

The above-mentioned test can be applied in the context of political rallies. 

Firstly, it has to be determined that the use is of a commercial nature or not. With respect to political rallies it can be said that the use is commercial in nature because although the primary goal is to achieve power for the party, a secondary goal to have monetary benefits is also accompanied.

Secondly, the nature of the work has to be determined. If the work is a factual work, lesser protection will be provided as compared to a creative work. In the instant case, since a song is a creative work, protection will be provided and will be against fair dealing. 

Thirdly, the amount and substantiality has to be assessed. Political parties tend to use the most relevant portion of the song (qualitatively significant portion), therefore it will be against fair dealing.  

Lastly, effect upon the potential market has to be seen. Using a song does not hamper the potential market of the song, however, it may increase the popularity of the song. This factor is in favour to conclude it as fair dealing. Thus, looking at the four factor test it can be concluded that the acts of political parties do not fall under fair dealing and infringe the rights of the owner.

Conclusion

After a due consideration of the provision in respect of fair dealing in the Act, it is clear that the act of using songs by political parties in rallies does not amount to fair dealing. Further, the test laid down by the Courts also clears that such an act does not amount to fair dealing. Thus, it can be concluded that playing songs at political rallies without owner’s permission infringe the rights of the owner.

REFERENCES:

[1] Indian Performing Rights Society v. Eastern India Motion Pictures Association and Ors. 1977 AIR 1443.

[2] Chancellor Masters & Scholars of the University of Oxford v. Narendra Publishing House and Ors. 2008 ( 38 ) PTC 385 ( Del ).

Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.

Copyright: ALG India Law Offices LLP