Leoplod’s Story

Novex Communications a leading satellite channel distribution company filed a case[1] against Leopold Café, one of the oldest and most famous café of Bombay for exploitation of copyrighted work principally owned by Yashraj Films Pvt. Ltd. and Shemaroo Entertainment Limited.

The main question for determination in this case was whether Novex Communication is entitled to grant licence on the behalf of owners of copyright in various works.

Section 30 of the Copyright Act, 1957 provides that owner of copyright and his duly authorized agent may grant any interest by licence in writing. It further prohibits any person or association of persons from carrying on business of granting or issuing licences in respect of any work in which copyright subsists only exception is Copyright Societies Registered under Chapter VII of the Act.

The court held that for a valid licence by an agent under Copyright Act factum of agency must be disclosed so that licensee knows that it has valid licence from the owner. The minute principle is undisclosed and licence is granted in the agent’s name, the prohibition in Section 33 comes into play.

Honourable High Court observed that licences issued by Novex did not indicate that it is acting as agent for the right holders. Further the manner in which Novex is conducting its operation does not indicate that it is acting as agent for owners of copyright, thus is in direct contravention of Section 33(1).

The court in this case harmoniously interpreted Section 30 & 33 and clarified that the prohibition under Section 33 does not apply to a case where an individual acts in his individual capacity, which includes acting through an agent but only requirement is to disclose the fact of agency.
 __ Gajendra Khichi

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[1] M/s. Leopold Café & Stores & Anr v/s Novex Communications Private Ltd. Suit (603of 2014) Bombay HC, decided on 17/7/2014

Battle of the Titans

Computer programs are subject to constant new developments, making issues like Copyright infringement a subject matter of pertinence. Presently, Oracle and Google is battling on similar grounds. In August, 2010 Oracle filed a complaint that Google has copied verbatim the literal elements of the API packages in its mobile operating system. API packages form the platform for mobile software development; in this case Google went to the extent of replicating the exact elements of the declaring source code. The issue which was dealt with most was about the non-literal elements of 37 packages out of 166 packages.

Northern District of California decided the case in favor of Google and held that API is not a subject matter of Copyright. The Ninth Circuit in this case endorsed the principle of Abstraction-Filtration-Comparison which was developed in Computer Associates Int. Inc. v. Altai Inc. . Copyright protection cannot be denied for the lines of the declaring code because Sun/Oracle did not provide only a single technique of writing the declaring code. Secondly, those phases used in it are creative and original in terms of selection and arrangement and certain expressions in the programs are subject to copyright protection.

Google filed a petition in the U.S. Supreme Court to the review the decision of the subordinate court on 6th October, 2014. Thus, a lot is at stake in terms of money, reputation which will be depending on the Supreme Court.

-Shambhavi Mishra

What amounts to Communication to the Public

US Copyright Act of 1976 gives copyright owner exclusive right to perform the copyrighted work publicly.[1] This is a case[2] of infringement of broadcasting rights under copyright law, where the defendant Aereo Inc. started a service over the internet through which its subscribers could watch TV programmes over the internet at the same time as the programs are broadcast over the air.

Broadcasters, distributors, television produces etc. argued that this act of Aereo violates their exclusive right of public performance provided under the Copyright Act, 1976.

In response to the above claim Supreme Court hold that the act of Aereo infringes the right provided under the Copyright Act. The court considered two questions (1) whether Aereo’s operation amounts to performance (2) whether it’s a public performance. In answer to first question it concluded activities of Aereo amounts to performance. Answering the second question it rejected Aereo’s argument that transmission of program to a subscriber is made through a specific antenna allotted to that subscriber only so does not constitutes public performance. The court further clarified that it amounts to transmission to public or public performance where members of pubic receive the performance at the same time and place or different times or places. In other words, the public need not to be situated together.

-Gajendra Khichi

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[1] 17 U.S.C. SS 106(4)

[2] American Broadcasting Cos. V. Aereo 573 U.S. _(2014)

The 'Mi' Trouble

The world of smartphones has witnessed constant growth and has become the subject of numerous infringement suits. Xiaomi is no stranger to controversies. As soon as the electronics firm entered the Indian Smartphone market, a few months down the line, has been blocked from selling handsets. 

At the crux of the matter, lies the infringement claims of eight registered Standard Essential Patents of Ericsson. The Hon'ble Delhi High Court has passed an injunction forbidding the firm from producing, building, importing or selling smartphones utilizing the Patent in India. India being its largest market outside China, this surely has come off as a blow to the infant company.

Xiaomi and Flipkart, e-commerce partner, have to announce how many devices have been shipped, so as to calculate the compensation due to Ericsson. In an earlier infringement suit against Micromax, Ericsson is to receive 1% of the selling price of the devices, by way of royalty, for use of latter's Standard Essential Patents. 

While thee court has directed the Central Board of Excise and Customs to stop the import of devices from Xiaomi, it is to be looked how the firm's legal team works a way out of this suit. 

- Bagmisikha Puhan

The UBER War

Uber, the name invokes the image of the ride sharing company, in a major chunk of the metropolitan population of the world. The services are also available in the city of New York, where there already exists a Trade Mark in the name of Uber Inc., a graphic design company.

As a matter of fact, the ride-sharing company holds two registrations in the names of UBER and UBERCAB for the Classes 9, 38, 39 and 42. The company has a reputation which now raises questions against the popularity of the Senior Trade Mark held by Uber Inc. There are many registered “UBER” marks spread across the spectrum of the classified goods and services.  

Consumer confusion in the domain of Trade Mark law derived from the second user, capitalizing on the goodwill of the early user. On the other hand, “reverse confusion” is the first user loses its’ control over the reputation and goodwill, where the consumers grow to believe that the senior user’s goods are associated with that of the junior user. The existence of the junior and the senior Trade Marks for the name “UBER” can now become an exemplar for Reverse Confusion.

The UBER Inc., for graphic design, could have proceeded with the claims of trade mark dilution, if only the mark would have had been famous. The junior user being the famous one is actually only to the disadvantage of the design company. Another issue which has created tension amongst the two companies, is the fact that the graphic design company has a listed telephone number, while the cab providers do not; misguiding many consumers of the ride sharing company to the senior user of the mark. It is only a matter of time before it unfolds if the two companies are pitted against each other in terms of counter claims. 

- Bagmisikha Puhan

Ghostwriting Troubles!!!

Ghostwriting is not a recent development, but it has been very much in practice since the days of Mozart. The Classical Era Composer was known for having ghostwritten music for wealthy patrons. Political leaders have been exploiting this avenue, along with many Executives and celebrities; who do not prefer to invest much of their time in relating to the public en masse, the lives they lead.

Recently, the erstwhile Chancellor of West Germany and the reunited Germany, Helmut Kohl, got into a legal tussle with his former Ghostwriter Heribert Schwan. After the fall out between Kohl and Schwan (publication of 3 books together), the ghostwriter has published "Vermachtnis: Die Kohl Protokole", recording many direct quotes of Kohl. Mr. Kohl had decided against the publication of the fourth book. 

Kohl in his interviews with Schwan had made very direct comments about the present German Chancellor, Angela Merkel, the former British Prime Minister Margaret Thatcher, and Mikhael Gorbachev too.

The former Chancellor has been successful in obtaining an injunction against any further printing of the book, which include the quotes of Kohl as recorded in the previous interviews with Schwan. The court has gone ahead in supporting Kohl's claims holding the ghostwriter's act to be an unlawful infringement of confidentiality, since the book has been published against the express wishes of his.

This is not the end of the tale, let's see how the story unfolds.


- Bagmisikha Puhan

Orphan Works

Copyright protected work for which the rights holder(s) is/are positively indeterminate and cannot be contacted, is said to be an Orphan Work. Even when the author is known, but there is lack of sufficient details to contact him or her, the work falls into this domain. A copyright holder’s sudden demise might also lead to the work slipping into the category of Orphan Works, when the inheritance cannot be established.

The fact that the owner of the copyrighted work cannot be reached makes it very difficult to obtain his permission for the use of the work, mere digitization becomes impossible. The use can only be warranted by Fair Use Exceptions.

The respective Governments have taken steps towards extending the accessibility of these works to the general public for these works to maintain their successful circulation and some have also taken steps to guarantee the payment of royalties for use of such works.

The latest news in this regard, is the UK IPO’s licensing scheme for Orphan Works. The IPO intends to maintain a register of works which can be licensed out to Applicants upon payment of royalties. The register will also enable the authors to check if any of their works have been labeled as Orphan Works under the system. The IPO also retains the power to deny the Applicants licenses where the proposed use is deemed to be inappropriate, or on any other reasonable ground.

The EU rules, in place, have already allowed the libraries, museums and universities, among other institutions, to digitize “Orphaned Works” from their respective collections, only after a diligent search has been carried out for determining the owners of the works. It is only time which shall determine the success of the scheme which the UK IPO has intended to move ahead with, and similar frameworks being adopted by other IP regimes across the globe. 


- Bagmisikha Puhan