The Office of the Registrar of Copyrights, in October 2020, invited industry inputs from the Federation of Indian Chambers of Commerce and Industry (FICCI) regarding proposed amendments to the Indian Copyright Act, 1957 (Act). On the 30th December 2020, FICCI released a document providing comments on certain provisions of the Act that need to be amended and recommendations on provisions that are required to be included in the existing Act.

FICCI pointed out that at present there is ambiguity surrounding ownership of the work developed with the help of Artificial Intelligence (AI) and the same should be addressed. Further, FICCI asked the government to come up with a clarificatory amendment to Section 2(d) of the Act [which defines ‘Author’] to resolve the ambiguity related to the concept of ‘authorship’ in terms of work generated with the assistance of an AI algorithm. It also suggested amending Section 13 of the Act [which discusses the concept of ‘originality’] to resolve ambiguities related to the interpretation of ‘originality’ in cases of AI-related works. Further, an amendment to section 17 of the Act was also suggested to clarify the concept of ‘First Ownership’ where AI is involved in the creation of some creative content. 

To protect the designers who don’t register their designs under the Designs Act, 2000, FICCI suggested amending Section 15 of the Act and adding of an exception to the rule that copyright in an unregistered design ceases as soon as the article to which the design has been applied, has been reproduced more than fifty times by an industrial process.

The Hon’ble Supreme Court’s decision in the case of Indian Performing Rights Society Ltd. v. Sanjay Dalia and Ors. [(2015) 10 SCC 161], where it was held that if the cause of action of the suit arises in the jurisdiction where the proprietor has their principal place of business, the proprietor must necessarily file a suit in such jurisdiction and not in the jurisdiction where the branch office is situated. In light of this decision of the court an amendment to section 62, clarifying that the term ‘carrying on business’ includes registered as well as the branch office, was suggested.  

FICCI also recommended enhancement of the damages especially for second time infringers. Additionally, incorporation of provisions related to establishment of a central authority to deal with Piracy and issue orders to ISPs and other intermediaries to block infringing Pirate websites and deal with Piracy more effectively, was also recommended. 

The document can be accessed at: https://ficci.in/Sedocument/20528/FICCI-Recommendation-Proposed-Copyright-Act.pdf  

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.

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The delegations of the African Group, the Plurinational State of Bolivia, Egypt, Eswatini, Fiji, India, Indonesia, Kenya, the LDC Group, Maldives, Mozambique, Mongolia, Namibia, Pakistan, South Africa, Vanuatu, the Bolivarian Republic of Venezuela and Zimbabwe;      co-sponsors for the Joint Proposal made by India and South Africa to waive certain provisons of the TRIPS Agreement for the‘prevention, containment and treatment of covid-19’, on May 21^st 2021, submitted a revised decision text for consideration by the council of Trade Related aspects of Intellectual Property Rights [TRIPS].

The revised decision text has been made taking to account all the discussions and feedback received on the draft decision text by the member countries and the growing concerns of continuous mutations and unknown variations in the SARS-COV-2. To reflect these changes, the co-sponsors revised the preamble of the draft proposal to emphasize on the unpredictable nature of the virus mutations and highlight the uncertainties and complexities in controlling the same.

Further, addressing the concern of the member countries that the original text is too broad in its ambit and many intellectual property issues may arise, the revised text amends the operative paragraph (1) of the draft decision text, to stress that the waiver proposed in limited in scope to the prevention, containment or treatment of COVID-19. It makes the original draft narrow by focusing the text on health products and technologies like vaccines, diagnostics etc. and their methods and means of manufacture, which are necessary to counter the global pandemic situation.

The revised decision text also alters the time duration for which the waiver was proposed in the original text. It limits the duration of time for which the waiver would be in force i.e. from the waiver being in force for an indeterminate period with a provision for annual review by the General Council to 3 years from the date on which decision is taken with regards to the waiver of the TRIPS provisions. The revised decision text added that after 3 years of such waiver, the General Council shall review the situation and either justify the extension of the waiver, in case of exceptional circumstances or determine the date of termination of the waiver if any such circumstances ceases to exist. This amendment was made considering the opinion that the duration should be practical in order to make manufacturing of vaccines and technologies feasible and to address the uncertainties faced by the international community while dealing with a novel pathogen.

The text can be accessed here – https://docs.wto.org/dol2fe/Pages/SS/directdoc.aspx?filename=q:/IP/C/W669R1.pdf&Open=True

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.

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The Cell for IPR Promotions & Management (CIPAM) under Department of Industrial Policy and Promotion (DIPP) has released an IPR Awareness Manual for industries on 25th March 2021 to assist industries/businesses within India and coming into India. It aims to facilitate a better understanding of how to have innovations registered and protected as well as enforced under the various Intellectual Property (IP) laws. The goal of this Manual is to serve as a guide for businesses relocating to India in order to develop their intellectual property, protect it against infringement, and profit from it.

The Manual explains the registration procedure of copyrights, patents, trademarks, designs, and geographical indications by laying down the various stages of registration, documents required, compliances involved,  to make it easier for companies.  It addresses the different kinds of infringements related to intellectual property, lays down the relevant statutory provisions and helps understand the remedies available to businesses under the various IP acts. The Manual also deals with information relevant to industry/businesses right from registration fees to the remedies available for one when their IP rights have been infringed. 

The Manual highlights the initiatives of the Government of India to strengthen innovation and creativity through start-ups & industries such as the scheme for facilitating the Start-Ups Intellectual Property Protection (SIPP). For example, MSMEs and Start-Ups can now file for expedited examination of  applications, along with 8 other classes of both Indian and foreign applicants, under the amended patent rules, wherein Start-Ups from around the world will be able to register their patent in India at a faster pace and at a much lower cost. With the revision to the patent regulations, there is no fee payable if the applicant withdraws his or her application.Further, the Manual discusses that online hearings were implemented to improve communication and decrease distance barriers, as well as save applicants’ time and effort.  The automatic issuance of an electronic patent certificate by the CGPDTM office to make it easier for businesses has also been provided in the Manual.

The Manual draws attention to customs seizures and civil litigation are two popular options amongst many for enforcing IP rights against unauthorised usage in India. The manual is intended to serve as a handy one stop reference for SMEs and other small-scale enterprises looking to accelerate and promote their innovation by properly registering and protecting their IP. 

The Manual is accessible here: http://cipam.gov.in/wp-content/uploads/2021/03/IPR_Awareness_Manual_for_industrieupload-version.pdf 

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.

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With the view to stimulate innovation and creativity among the Start-ups, Department for Promotion of Industry and Internal Trade (DPIIT) had launched the Scheme for facilitating Start-ups Intellectual Property Protection (SIPP) in 2016. Initially the scheme was launched on a pilot basis till 31^st March, 2020. This scheme has now been extended up to March 2023 with certain amendments in it.

The growing significance of Intellectual Property Rights (IPRs) among the Start-ups calls for an equally sustainable strategic business tool in order to endure in an aggressively competitive world. The SIPP scheme envisions to cater to Intellectual Property protection for inventive and interested Start-ups. Providing premium IP services as well as resources for the protection of technologies used by the Start-ups the scheme leads the way towards awareness and adoption of IPRs among these Start-ups.

For the successful execution of the scheme, the Controller General of Patents, Designs and Trade Marks (CGPDTM) shall empanel the facilitators. The scheme stipulates the requirements for who is eligible to apply for availing the benefits of the scheme; empanelment of facilitators; eligibility for becoming a facilitator; their functions and duties and fees of the facilitators. The CGPDTM will also be responsible for regulating the facilitators judiciously.

These facilitators are mostly CGPDTM registered Patent or Trademark agents and have the requisite qualification for offering general advisory on various IPRs to the Start-ups to even protecting and promoting their IPRs in other countries as well. They are well-read with the relevant provisions of the Statues and Rules, while actively practicing the law in accord with the Bar Council of India.

The facilitators will be in charge of carrying out the tasks that the CGPDTM has determined. They will be responsible for a variety of tasks, including providing IPR protection information, assisting in the filing and disposal of IP applications, drafting patent specifications for start-up inventions, preparing and filing responses to examination reports, appearing on behalf of start-ups at hearings, and even contesting opposition and ensuring the final disposition of the IPR application.

As far as the fees of the facilitators is concerned, it shall be payable only through the office of CGPDTM and nothing would be charged from the Start-ups or the entrepreneurs. Most of their services shall be on the pro bono basis. The scheme clearly specifies the amount of facilitator’s fees, which may be claimed for the different stages of application for Patent, Trademark, and Design. Finally, the full ownership of the IPR shall be that of the Start-up alone.The Scheme is accessible here: 680_1_SIPP_extension_as_approved_by_SIIT.pdf (cipam.gov.in).

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.

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An influencer is someone, who has access to a large audience along with the power to affect the purchasing decisions of the consumer. Owing to their influence on the audience, influencers have the power to alter consumer opinion on a product or service and therefore purchasing decision.  The trend of social media influencers is not new, but rather has been prevalent for quite some time. There are many social media influencers with a significant number of followers, engaged in endorsement of goods and services of different brands.

Nowadays, virtual influencers are also trending on social media and gaining popularity. As the name suggests, virtual influencers are influencers with virtual identity and could be understood as an artificial computer-generated influencer driven by artificial intelligence, with the possible appearance, characteristics and personality of a human being. Just like a social media influencer, these virtual influencers also have access to large audience on social media, one such examples is the Instagram account of the famous virtual influencer Miquela with around three million followers.[1] Owing to such large audience and fandom, virtual influencers could also influence and alter the purchasing decision of a consumer, just like an any other social media influencer. Hence, it is important to regulate the claims and endorsements made by the virtual influencer as well. However, since liability cannot be imposed on the virtual influencer, the question arises should the liability be shared between the brand-owner and the companies behind such virtual influencer?

So far, the reference to virtual influencer could only be found in the recently issued Advertising Standards Council of India (ASCI) guidelines for “Influencer advertising on digital media”[2], defining virtual influencer as , “…fictional computer generated ‘people’ or avatars who have the realistic characteristics, features and personalities of humans, and behave in a similar manner as influencers.” and also putting a liability on virtual influencers to disclose to the consumers that they are not interacting with a real human being. The new ASCI guidelines could be seen as a first step towards recognition of virtual influencers.

That said, since virtual influencers are a product of Artificial Intelligence, and cannot act independently, there is a need to put liability on the person behind these virtual influencers and need for due-diligence to be exercised by both brand owners as well as the companies behind these virtual influencers.

[1] https://www.instagram.com/lilmiquela/?hl=en

[2] https://asci.social/guidelines

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.

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