Author Archives: Law Matters

Commercial v. Creative Expression

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There’s an interesting division between commercial speech and creative speech. In some jurisdictions, creative speech is accorded more protection that commercial speech is accorded. However, it isn’t always entirely clear what would constitute commercial speech, and what would be considered to be creative speech.

It would appear that creative speech remains creative speech even if it has a commercial aspect to it. The distinction, however, does not appear to be entirely clear. For example, an ‘advertisement in the course of trade’ (referred to as an ‘advertisement’ hereafter) would be considered to be commercial speech regardless of the degree of creativity inherent in it and regardless of whether or not it had any impact on the sales figures of the advertiser. On the other hand, the dialogue of a film would be considered to be expressive speech regardless of how little creativity was inherent in it and regardless of how much money was being made off the film.

And as such, it would appear that the differentiation is made not so much on the basis of the creativity of the work or the revenues associated with the film but on whether or not the genre of work would exist with or without a commercial association. An advertisement would not exist without something to advertise while it would be extremely likely that people would continue to make films regardless of whether or not those films were commercialized.

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Delhi High Court takes up the “No Cashless Facility” Health Insurance Issue

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One might conclude that if one bought a health insurance policy, and paid a higher premium in order to avail of the “cashless facility”, the said “cashless facility” would actually be made available to one. Such a conclusion, however, apparently proved to be erroneous in a number of cases, including one involving a cancer patient.

An Individual Policy Holder who bought an insurance policy from Oriental Insurance Co. Ltd. was told that the “cashless facility” which he had paid for would not be made available to him because he had bought his policy as an Individual (as opposed to having bought his policy through a company). It wasn’t entirely clear why this should have made a difference, given that he had paid a higher premium for the “cashless facility”, and that there appeared to be no reasonable ground for differentiation between a policy-holder who was an Individual Policy Holder and one who was a Corporate Policy Holder.

As a result of this ostensible discrimination, and of not being able to avail of a service for which he had paid, the Individual Policy Holder filed a Writ Petition before the Delhi High Court which came up for hearing on July 30, 2010, before Hon’ble Mr. Justice S. Muralidhar. The Hon’ble Court issued notices to the Insurance Regulatory and Development Authority, The Oriental Insurance Co. Ltd. and Genins India Ltd. (the Third Party Administrator) — the Writ Petition was maintainable as the IRDA falls within the scope of the definition of “State” in Article 12 of the Constitution, as does the insurance company which is a PSU.

Spinoffs and Sequels

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It looks like Michael Douglas and his ex-wife Diandre are set to debate the difference between these two forms of derivative works — sequels and spinoffs — in Court. Under the terms of their divorce, Diandre is entitled to fifty per cent of income from spinoffs of movies in which Michael Douglas acted before their divorce.

The issue has come up with reference to “Wall Street 2″ which Diandre is treating as a spinoff, and Michael Douglas is treating as a sequel. The press and publicity associated with the film all seem to treat the film as a sequel as well. However, the terms “sequel” and “spin off” are not defined by copyright law, and the term “spin off” is not defined in their divorce agreement either. Also, it isn’t clear why the terms of the divorce refer to spinoffs and not to sequels given that the former term is usually used with reference to TV programmes, and the clause itself refers to films.

A sequel is defined as “a literary work, movie, etc., that is complete in itself but continues the narrative of a preceding work”, while a spin off is defined as “something derived from an earlier work, such as a television show starring a character who had a popular minor role in another show”.

The link between spinoffs and sequels appears to be only incidental — they are both derivative works, and that appears to be where the similarity between them ends. A spinoff would generally be primarily unrelated to the original work — think “Joey” and “Friends” — while a sequel would build on the story contained in the the original work.

ABC News has an interesting report on the subject (here) where they had two lawyers discuss the matter.

Privilege and Property. Essays on the History of Copyright.

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“What can and can’t be copied is a matter of law, but also of aesthetics, culture, and economics.”

According to its publisher, OpenBook Publishers, this book edited by Martin Kretschmer, with Lionel Bently and Ronan Deazley will trace the history of copyright law, and its emergence from a “a wide range of norms and practices” across a number of countries. The book will also explore the effects of such things as the abolition of the privilege system, and the evolution of the rights associated with the visual and performing arts.

What looks particularly interesting about the book though it the business model being used to publish it. It can be read online free of charge; there are also various paid formats available:

1. digital(pdf) – £4.95

2.paperback – £14.95

3. hardback – £24.95

Rapist Claims Copyright

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True, the threshold for ‘copyrightability’ is low for literary (and other) works. A literary work must be original. It should not infringe another work’s copyright. It should be written or otherwise fixed in a tangible form. Writing it should generally involve some form of skill and labour being expended. And it need not contain an iota of merit.

That being said, there are some things which cannot be copyrighted. You cannot copyright a description of what you are. You cannot copyright a phrase used by the world plus dog. You are unlikely to be able to copyright the ordinary grocery list. You probably would not be able to copyright the text in a standard almanac or calendar. You may not be able to copyright the title of a book. And you definitely cannot copyright your name.

That, however, is exactly what a former legislator from South Dakota who was convicted in 2007 on four counts of second-degree rape has attempted to do.

Claiming that he seeks to prevent the use of his name without his consent, Ted Alvin Klaudt sent out a letter and an accompanying document labeled ‘Common Law Copyright Notice’ reserving a common-law copyright of a trade name or trademark for his name. It said no one could use his name without his consent and that anyone who did so would owe him $ 5,00,000, according to an article in the New York Times.

It would appear that Klaudt is trying to use his own rather confused version of copyright and trade mark law to ensure that he doesn’t get (? any more) bad press. However, apart from the fact that it has brought his name into the limelight in additional contexts, the fact is that the law would simply not support his claim.

For one thing, he would not be able to copyright his name. And as far as trade marks are concerned, they denote the origin of goods or services, and a name would not be a valid trade mark unless it was used in conjunction with one of the two. (Perhaps we’ll see Klaudt stationary in the market soon?)

However, even if a valid trade mark existed, Klaudt would still not be able to prevent others from using the his name for such purposes as reporting news under any law. While this is certainly an interesting way to try to prevent persons writing his name (and writing about him), it isn’t an approach which intellectual property law would support.

Facebook URLs

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A short while ago, Facebook announced personalised URLs. For most individual users, this is probably little other than an additional feature. However, for companies, brands, products, services and public figures, it could have important intellectual property implications. If such entities / celebrities have active Facebook accounts, it would make sense for them to reserve unique usernames associated with their Profile Pages whether or not Facebook figures prominently in their business plans. If reserved, the selected username would appear as follows: facebook.com/username with the username replacing a randomly assigned numerical reference.
 
Eligibility:
Businesses or brands must have been live on Facebook before May 31, 2009 and have had at least 1,000 fans at that time to be eligible to select a username. Facebook has said that new users can reserve a username on June 28, 2009 but it is unclear if this also applies to Profile Pages for businessses.
 
Implications for trade mark owners:
If possible, it makes sense to secure a username as soon as possible so as to secure the trade mark and to prevent name/cyber squatting. The usernames cannot be changed once they are submitted at: http://www.facebook.com/username. Further, usernames cannot be assigned.
 
Prevention of unauthorised use:
The owners of registered trade marks can prevent their trade marks from being reserved as usernames by filling out (or authorising another person to fill out) an online form located at: http://www.facebook.com/help/contact.php?show_form=username_rights. However, this is unlikely to help those who do not have registered trade marks.
 
Infringement Allegations:
In case some reserves a trade mark owner’s mark as a username, the owner can report this to Facebook at: http://www.facebook.com/copyright.php?noncopyright_notice=1 although it is unclear how Facebook plans to resolve disputes. Although Facebook has reserved the right to remove usernames, it is also not clear whether removed usernames will become available for others (in this case, the trade mark owner) to use or if they will simply pass out of circulation. If the latter is the case, the trade mark will not be available to the owner which makes it important to secure it as soon as possible.

NRIs Abandoning Spouses

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Usually, when the subject of NRI marriages is brought up, people speak either of how sought after they are or about how wives in such marriages supposedly use the allegedly draconian provisions of Section 498 A of the Indian Penal Code (which makes cruelty to wives an offence) to “torture” their husbands and in-laws who are, of course, invariably innocent of being cruel and unsuspecting of what’s in store for them. In its 219th Report though, it has been reported that the Law Commission has not confined itself to this supposed abuse of the law.

The Report which is entitled ‘Need for Family Law Legislation for Non-Resident Indians’ the Commission has spoken of the widespread practice of NRIs — usually men — marrying Indian spouses and then abandoning them whenever it strikes their fancy. The women — because it usually is women — usually do not come from families as well off as those they married into, and, in most cases, there’s precious little they can do about having been dumped.

In some cases, the marriages are not even legally valid and the women barely have any rights worth speaking of. Getting any form of alimony is often impossible, and such wives often wind up quite a bit worse off than they were before they got married.

In order to try to deal with such situations, the Law Commission has made a number of recommendations to ‘ensure compliance of the conditions of a valid marriage, to provide proof of marriage, and to act as a deterrent against bigamous practices’. The recommendations include the compulsory registration of marriages where one spouse is an NRI, requiring that the concerned High Commission or Embassy be given copies of the marriage documents, and having states like Punjab with high NRI populations set up fast track courts to inter alia resolve matrimonial and custody issues in such cases expeditiously.

In terms of legislative measures, the Commission has suggested that marriage laws such as the Hindu Marriage Act and the Special Marriage Act be amended to specifically provide for the maintenance and alimony of spouses, the custody of children and the division of matrimonial property in such cases. It has also suggested the creation of a single uniform legislation for the adoption of Indian children by NRIs.

Even if these recommendations are acted upon though, it will be some time before they actually help women who have been abandoned by NRI husbands.