Author Archives: Nandita Saikia

About Nandita Saikia

Nandita Saikia enjoys studying intellectual property issues. She has been extensively published, and her experience encompasses work as a litigator, journalist, editor, website content co-ordinator, as an ICT campaign content manager and as a guest lecturer of music history. She can be contacted at saikianandita[at]gmail[dot]com.

The Validity of Advance Sexual Consent

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The validity of “advance consent” is an issue which is being determined by the Canadian judiciary. Advance consent has been held to be invalid only in recent times. Throughout history, advance consent was recognised by both law and society, the most visible example of which was the “advance consent” which a wife granted her husband during the wedding ceremony, and which lasted till death (or, in more recent times, divorce) did them apart.

What is interesting though is that, this time around, the issue of advance consent has not arisen in the context of orthodox sexual practices but with reference to practices which many people would find anything but orthodox. The Canadian courts have been called upon to determine whether a woman who allegedly consented in advance to erotic strangulation also consented to being sodomised while unconscious.

There are several pertinent factors. Firstly, the woman’s story was not always entirely consistent. Secondly, there appears to have been a history of domestic violence involving the woman and her partner, and as such, the validity of any consent she gave, assuming that she did in fact give consent, may not be beyond question. Thirdly, even assuming that she did give consent for one act, it is unclear how consent for one specific act could metamorphose into consent for other acts as well. Finally, considering that consent in these circumstances cannot truly be considered to have been granted if it does not also include an opportunity to withdraw consent, it is unclear whether it would be possible to give consent at all for an act such as strangulation – after all when one is being strangled or is unconscious, the withdrawal of consent is not an option.

Clearly, therefore, to voluntarily engage in acts which leave one incapacitated would require the grant of advance consent. However, blanket recognition of advance consent presents problems in itself. There are, of course, the “standard” issues which the recognition of advance consent has presented throughout history such as the non-recognition of acts such as marital rape as crimes. In addition to this, there are also echoes of that historical legacy which are heard today. This could be in the form of “non-consensual consent” where women consent in advance to an activity, and consent to having their partners force them to engage in it later even if they don’t want to do so at that later time. Alternatively, it could be in the form of pseudo-legal documents such as “abuse contracts” where women consent in advance to being abused.

There is little doubt that there are circumstances in which advance consent runs contrary to our current socio-legal ethos. However, if advance consent were to be considered to be entirely void, it would make it impossible to perform certain acts within consensual relationships, and could, in effect, regulate relationships between consenting adults – which, too, in today’s socio-legal and cultural climate would, inter alia, be considered to be an unacceptable violation of the right to privacy. As such, while the issue may seem to be relatively clear-cut at first glance, a closer look reveals that it is anything but clear. The recognition of advance consent could make women vulnerable to abuse. On the other hand, non-recognition of advance consent could make illegal certain acts between consenting adults which are of an essentially private nature, and in which the law would not generally interfere.

One solution would seem to be draw out lists of circumstances in which advance consent could and could not be recognised. However, this too presents its own problems: primarily, how would one determine to which set a particular case would belong. For example, if advance consent was given within a relationship marred by domestic violence, could it be considered to be “real” and, consequently, valid? Or would the possibility that the advance consent was not voluntary make it void? It is unclear whether there is any way in which to differentiate between circumstances in which advance consent should or should not be recognised. Universal recognition could, however, adversely affect the safety of many, and universal non-recognition could adversely affect the freedom of some. Whether safety should supersede freedom, or freedom should supersede safety, is ultimately a value judgment which would manifest itself as a matter of policy.

(This post is by Nandita Saikia and was first published at LawMatters.in.)

Links via Feminist Legal Forum:

Ghost-writing, Plagiarism and Copyright

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Ghost writing is intriguing because it exists in a gray area. It is clearly a form of plagiarism, although it is supposedly plagiarism with the consent of the actual author (the ghost writer) of the work. Perhaps that makes it morally acceptable? In other words, does the consent of the actual author make it acceptable for the ostensible author (the person commissioning the work) to appropriate authorship of the work? It is, after all, a contractual relationship, in most cases, and one of the essential elements of a contract it be entered into voluntarily by the parties. Therefore, it could be argued, that if the actual author consented to having his work published as the work of the ostensible author, there can be no case of plagiarism really having occurred.

However, if one were to look at the contexts within which ghost-writing contracts are generally signed, it is apparent that as a general rule, the ghost-writer is a person whose socio-economic status is lower than that of the ostensible author. Whether or not there can be true consent in such circumstances is debatable. While there may be no coercion in the legal sense of the word which would invalidate any specific contract, the broader picture may clearly demonstrate that socio-economic constraints cause actual authors to consent to the publication of their work under the names of other persons. As such, it may be possible to consider ghost-writing contracts to be unethical despite being legal.

Further, leaving aside arrangements which involve concrete ghost-writing agreements, it is also pertinent to note that the line between editing and ghost-writing is sometimes extremely thin, as many editors would be able to attest to. This is because when “authors” produce badly written texts those texts may require not merely editing but re-writing before they are suitable for publication. In most cases, the editor would not even be credited as a joint author despite possibly having entirely written the final text. This is especially true if the ostensible author happens to be a well-known person, and the editor is not.

Another route through which an actual author may become a ghost writer is when he is a person working within an organisation, possibly as an assistant of a researcher, or at some other analogous lower-rung position (in comparison to the ostensible author). For example, describing the process through which a person could besome a ghost-writer, Debora Weber-Wulff says, “First an assistant prepares some material. Then something is written by an assistant and rewritten by the researcher before publishing. Then under the pressure to publish more and more and more a text gets passed through without change, but the true author is kept hidden, and the researcher does not even find anything wrong with this.”

As such, ghost-writing arrangements may not involve express contracts, and could well involve merely implicit consent, which consent may be forced. That is to say that the actual author may be required by circumstances to consent to the appropriation of his work by the ostensible author. Consent may not be voluntary, or for that matter, even exist. It may simply be assumed, and the actual author may not be in a position to complain about the loss of his right to be attributed for his work. In such circumstances, it is clear that there is no true consent, and thus, without the circumstances being changed, it is unlikely that it would be possible to consider ghost-writing to be above the board from either an ethical or legal point of view.

Coming back to express ghost-writing agreements though, leaving aside the issue of consent, it is unclear what their legal position would be under Indian law. This is because under the Copyright Act, the first owner of a copyrighted work is determined according to the provisions of Section 17. Although this Section contemplates works made for hire (or commissioned works), under Indian copyright law, the work-for-hire doctrine as it exists in Title 17 of the United States Code does not exist. In India, the person commissioning a work may become its first owner but the commissioner cannot become the “first author”.

Therefore, the actual author or the ghost writer would continue to be the author of the work. Under Section 57 of the Copyright Act, the author of a work has the right to be attributed as the author of his work. It is unclear whether an author may waive the right to attribution as contemplated by Section 57. Relying on the 2006 Centrotrade judgment of the Supreme Court, it may be argued that the right to attribution can be waived by an author since this judgement states: “A person may waive his right. Such waiver of right is permissible even in relation to a benefit conferred under the law. But it is trite that no right can be waived where public policy or public interest is involved.”

However, this judgement does not pertain to copyright, much less to Section 57 rights. As far as moral rights are concerned, it would be possible to argue that they cannot be waived, and that any supposed waiver of moral rights is invalid. The crux of the matter is that the question of the waiver of moral rights has not specifically been determined by an Indian court, and the statute is silent on the issue. As such, the possibility of the waiver of the moral right to attribution exists in an extremely gray area of copyright law. Should it transpire that the moral right of an author to attribution cannot be waived, it would appear that ghost-writing contracts would be ultra vires the Copyright Act, and thus be invalid under Indian law.

Leaving aside the question of validity of ghost-writing agreements, there is also the question of public perception. Ghost-writing could be considered to be fraud in the popular sense of the word since the intention of a ghost-writing arrangement is to blind the audience to the fact that the ghost-written work is not a work which has been written by its ostensible author. To some, that in itself, would make ghost-writing arrangements unethical, particularly considering that ghost-writing arrangements generally serve to increase the “prestige” of the (usually “more powerful”) ostensible author by misappropriating the “prestige” which should have been accorded to the actual author (who has comparatively less “power”).

(This article is by Nandita Saikia and was first published at LawMatters.in.)

Case Citation: Centrotrade Minerals and Metal. Inc. v. Hindustan Copper Limited; (2006) 11 SCC 245

Is Copyright Infringement Theft?

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[This post was revised to include Part II which was first published at 'IndianCopyright'.]

Part I:

Some time ago, Terry Hart wrote a post on Copyhype which leaned towards characterising copyright infringement as theft, and Techdirt (via @gkjohn) subsequently posted a write-up on why copyright infringement is not synonymous with theft. There exists case law on the subject; unfortunately, case law which is susceptible to interpretation, and as much as one might wish, the issue is not entirely one which confines itself to legal interpretation but is one which deals with how one perceives copyright infringement. That is to say, does one consider copyright infringement to be a legal issue with moral overtones?

If one were to think of copyright infringement as a moral wrong, one would be far more likely to think of infringement as theft – in the popular sense of the word – with all of its attendant moral implications. However, if one were to think of copyright infringement as merely the violation of a legal right (which is, incidentally, how I perceive copyright infringement), one would be far less likely to consider copyright infringement along the same lines as theft. However, that being said, the question is more nuanced than “Is Copyright Infringement Theft?” since copyright infringement often occurs concurrently with plagiarism. As fluid as the term “plagiarism” may be, there is little doubt that plagiarism involves copying another person’s work or ideas without attributing that person. There may, of course, be times when plagiarism is unintentional and inadvertent. In such cases, assuming attribution is accorded to the source as soon as a crediting error is noticed, plagiarism would generally not be considered to be an issue.

Leaving aside instances of inadvertent plagiarism, firstly, if the person committing plagiarism were copying another person’s work in a manner which would violate the  rights of the owner of the work as defined by copyright statutes, not only would he be committing copyright infringement but he would also be violating the original author’s moral rights. And, secondly, assuming that he copied the original author’s work in a manner which did not make the copied version fall within the scope of the violation of copyright or of the author’s moral rights under copyright law (such as by paraphrasing the author’s idea without attribution and with completely new expressions), he would still be committing plagiarism although he would not be guilty of copyright infringement or of violating the author’s moral right as defined by copyright law.

In the first case, it is relatively clear that both the owner’s and the author’s rights would be violated. However, as far as the owner’s rights are concerned, the scope of copyright infringement has itself become so wide today that it is virtually impossible to make any form of derivative work from a copyrighted work without committing copyright infringement. Considering that copyright is, in itself, an entirely legal right, it could, consequently, be argued that it is amoral. Theft, on the other hand, has distinctly moral and religious overtones. As such, the mere violation of copyright may not be comparable to theft because of having an entirely different genesis.

There is, however, still the issue of plagiarism to be dealt with in both the first and second cases. Plagiarism, which may be roughly equated with the violation of an author’s moral right to attribution, is generally considered to have moral overtones, and need not necessarily occur in conjunction with copyright infringement.

It is far easier to make comparisons between theft and plagiarism than it is to do so between theft and copyright infringement because both theft and plagiarism are — to a certain set of persons — distinctly moral issues. As G. Thomas Couser, explained in an open letter to student plagiarists: “The opposite of academic honesty is not actually academic dishonesty; it’s dishonesty that is decidedly unacademic. … The problem is not so much rule breaking as point missing.” However, there is, of course, also a set of persons to whom plagiarism is not a moral issue.

Further, attempting to bind plagiarism to ethical, philosophical or historical anchors is not always easy. For example, prior to the emergence of modern copyright, much of our intellectual work product was communal and derivative — and there is no evidence that plagiarism was ever an overriding concern. There are those who draw parallels between the manner of creating works in say, the medieval times, and in modern times: the Internet has once again allowed us to create much of our intellectual work product on a communal basis, this time on a international scale, with many of our ideas of authorship supposedly being eroded. And, if the importance accorded to authorship were to be diminished, the likelihood of plagiarism being considered a wrong would also be diminished; without a clear author, who would one attribute?

The primary problem with this argument is that whether or not an author is easily identifiable, a person using an existing work would still be able to source it. For example, a Wikipedia article, the definition of a communal work, could always be attributed with a link to it even if its authors were numerous or difficult to identify. Copying from a work of joint authorship does not negate the fact that such copying is plagiarism if it is devoid of attribution. In addition to this, as Jonathan H. Adler has pointed out, “The mash-up culture is not a culture of plagiarism.  Those who copy music, lift riffs, or appropriate images don’t usually claim authorship of the original source material or claim it as their own.  They use this material in works of their own, while freely acknowledging its provenance.  …. Even in the Internet Age, we recognize the difference between incorporating the work of another and passing it off as one’s own.”

The appropriation of another’s work and passing it off as one’s own would seem to be a moral issue. Whether or not one considers it to be synonymous with theft is, however, ultimately, a value judgment. Given that such appropriation or plagiarism often takes place in conjunction with copyright infringement, it is difficult to separately consider issues of ownership and authorship, of the violation of a legal right and the violation of a moral right, and most importantly, in this case, to separately consider the issues of infringement and theft.

(This part was first published at LawMatters.in.)

Part II:

One question which arises with reference to the nature of copyright infringement is whether or not it is comparable to theft. While many rights holders describe infringement as being analogous to theft, using words such as “piracy” and “pirates” to describe copyright infringement and those who commit it, the position that ‘infringement is comparable to theft’ is open to strenuous debate, and even more so is the position that ‘infringement is comparable to piracy (with all its attendant insinuations)’.

In India, to have committed theft according to the letter of the law, one must have ‘intended to take dishonestly any movable property out of the possession of any person without that person’s consent, and have moved that property’. As such, if one were to consider the legal definition alone, it is clear that despite the fact that copyright is considered to be movable property, copyright infringement could not possibly be considered to be analogous to theft simply because infringement does not generally involve removing copyright from the “possession” of the owner and moving it. For one thing, copyright, being an intangible, cannot be possessed. And for another, even if one were to enjoy the copyright of another person without his or her consent, one would not be “removing” it from any supposed “possession” of the owner.

Of course, there may be situations in which products which have an intellectual property component which are the subject of theft, but in such cases, as a general rule, it is not the violation of intellectual property rights which is of primary focus but the theft of the products themselves. For example, if a consignment of music CDs were stolen, one would generally have the owner of the CDs speak of theft and not of copyright infringement. In fact, at the point of time when the CDs were stolen, it could be argued that copyright had not been infringed, and that only a subsequent act of the perpetrator such as the sale of the CDs would cause the copyright in them to have been violated.

The underlying assertion, however, would remain unchanged: that “copyright infringement” could not be equated with “theft”, in the legal sense of the word. The popular sense of the word could be considered to be a completely different story though. Theft, in everyday terms, assumes a much broader meaning which is fraught with moral and religious overtones. In the Christian tradition, for example, the Eighth Commandment clearly prohibits stealing.

This Commandment too would appear to contemplate stealing something which is tangible though, and not something which is merely a “right” or, more accurately, a privilege granted by the state – a privilege which cannot be considered to have moral overtones particularly in light of the copyright’s history: leaving aside proto-copyright regimes which existed in parts of Europe, if one were to consider the origins of copyright in England, the first modern copyright statute arose not so much because of an ardent desire to protect authors but from the instinct for self-preservation which publishers had. The Company of Stationers had, by the time of the reign of Queen Anne, lost the privileges which were accorded to them in consequence of existant censorship laws in England, and it was to preserve their livelihoods that they pushed for the1709 Statute by having a hitherto virtually unheard of right – the author’s copyright – enacted into law.

While today, it may be possible to argue that the author’s copyright is all about authors, if one were to take oneself back in time to the 1700s (or, for that matter, even the 1970s), it would become apparent that the author’s copyright was little more than a support structure for a business model which supported publishers far more than it did authors. After all, an author’s exclusive right was of very little use to him (or her) as in pre-Internet times, there was no real way in which an author could publish and distribute his work unless he had independent means.

As such, as an economic and legal right, which is decidedly amoral, it is extremely difficult to argue that the infringement of copyright is comparable to theft. However, modern copyright statutes tend to include such rights as the right to attribution within their scope, and in fact, may include such rights in such a manner as to leave them irreversibly enmeshed with copyright.

Under the Indian Copyright Act, 1957, for example, Section 57 includes within its scope the right of an author to be attributed for his work. Although, in the Indian statute, the right is referred to as a “Special Right”, commentaries on Indian law often refer to the right as a moral right, as do some foreign statutes which incorporate the right to attribution as a moral right within their text. This right to attribution subsists in respect of a work protectable by copyright (arguably even after the expiry of the copyright in that work), and it subsists ‘independently of the author’s copyright and even after the assignment either wholly or partially of the said copyright’. Thus, the right to attribution could be considered analogous to the right not to be plagiarised.

Despite the fact that the right to attribution is explicitly stated to be independent of copyright, and is impliedly considered to be a moral right, Section 63 of the Indian Copyright Act which deals with criminal offences fails to differentiate between the infringement of copyright (an economic right), and the violation of a Section 57 right (a moral right). It treats the two in exactly the same manner, and prescribes exactly the same punishment for both.

This sort of intermingling between moral and economic rights is not uncommon. Even if one were to turn to International laws such as the UDHR and the ICESCR, one would see that while they could be considered to be different, these treaties do speak of these disparate rights in the same breath. In fact, it is also pertinent to note that these treaties do not even seem to differentiate between different kinds of intellectual property which are created by intellectual labour. Article 27(2) of the UDHR merely states that ‘everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author’. And, along similar lines, Article 15(1)(c) of the ICESCR states that ‘the States Parties to the present Covenant recognize the right of everyone to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author’.

Perhaps it is this trend of “simultaneous treatment” of economic and moral rights which has created much confusion, along with the fact that infringement may occur in conjunction with plagiarism. While it may well neigh be impossible to set up an unassailable argument of infringement not being analogous to theft, in the case of plagiarism, it is far easier to make comparisons with theft considering that both plagiarism and theft have strong moral overtones, and both of them involve attempting to appropriate something which belongs to another.

In the case of plagiarism, the work of an actual author is fraudulently misappropriated and passed off by the plagiarist as his own. In some cases, plagiarism may be inadvertent. However, in others, plagiarism is anything but inadvertent and is a deliberate attempt to do such things as, possibly, gain prestige if one an academic, or take a short cut to avoid actually having to do the research (and writing!) for a paper if one is a student. Although if one were to go back in time, many of our greatest works could be considered to be “communal” in some cases or “derivative” in most others, the mere fact that the historical origins of modes of production would not obviate the damage which plagiarism is capable of doing today.

One’s words are no longer considered to be communal property even assuming that there was a time when that was the case. In the case of academic plagiarism by students, as G. Thomas Couser explains in a letter to plagiarists, ‘plagiarism entirely defeats the attempts of professors to educate students. It is a substitute for (and the very antithesis of) the intellectual work which professors ask students to do, and committing plagiarism suggests that students do not value an expensive education’.

Within an academic setting, it is not difficult to find persuasive moral arguments against plagiarism especially given that one’s standing in the community is dependent on one’s publications. Another convincing argument though, which applies in almost all settings, is that plagiarism involves a form of identity theft. In writing a work, authors typically “exude” a part of themselves into their work. By appropriating the work of another, what a plagiarist in effect does is steal the voice of the actual author. Considering this, it would be difficult to justify plagiarism.

As such, considering the nature of plagiarism, it may be possible to treat plagiarism as theft despite the fact that copyright infringement is not. However, considering that plagiarism and copyright infringement often occur concurrently, it is sometimes extremely difficult to speak of them separately. Despite this difficulty, it is unlikely that it would be easy to justify lumping “plagiarism” and “infringement” under the umbrella term of “piracy” as many are wont to do.

(This part was first published at ‘Indian Copyright‘.)

Medea and Criminal Liability

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PD image from WikiCommons

Medea by Sandys from WikiCommons

Euripides’ Medea has defined the modern perception of her. The play portrays the “terrible decision that Medea comes to as a result of her painful suffering.”

Her “painful suffering” was the suffering which her husband Jason inflicted on her by being unfaithful to her and marrying Glauce, a princess to further his political ambitions. He justified himself by saying that he could not pass up the opportunity to wed a princess, and Medea was, after all, a barbarian woman, never mind that she was a barbarian woman who’d given up family, home, and homeland for him. He ultimately, apparently, planned to “unite” the two families — his family with Medea, and with Glauce — and turn Medea into his mistress.

Medea’s “terrible decision” was the plan she decided to execute to revenge herself on Jason — she killed Glauce (and, Glauce’s father, Creon) using a poisoned dress, and killed the two children she had had with Jason in order to spite Jason and cause him as much pain as possible, or so one interpretation runs. Whether or not she should have been held accountable is debatable though.

Jason had supposedly remarried so that he could have children with Glauce. And when Glauce and his father-in-law were murdered by Medea, he apparently rushed to find the children he had had with Medea so that they would not be subjected to revenge because of their mother’s act. It could well be argued that one of Medea’s aims in killing her children was to spare them death at the hands of her enemies.

Then again, by killing the children, she effectively killed a part of Jason. And perhaps that was the ultimate revenge: Jason wanted children, and she not only deprived him of the possibility of having children with Glauce but also killed the children he had already had with her. To kill the children for a reason that was anything but altruistic would involve viewing the children not so much as individuals in themselves but as extensions of their father, which perhaps could be understood given that contemporary Greek society was intensely patriarchal, and viewed women mainly as breeders and chattel.

Contemporary Athenian law also allowed a man to marry and have children by a citizen woman while keeping a foreign woman who was not a citizen, in this case, Medea, as a concubine. And as far as divorce was concerned, all a man had to do was formally repudiate his wife, and send her back to her father or other male guardian with her dowry. There were two reasons who this did not apply to Jason and Medea though: firstly, Medea had contracted her own marriage, and as such, she had no one she could be “returned to”. Secondly, Jason had sworn to be wed to Medea before Zeus and Hera, and as such, by divorcing her, he had in fact, broken an oath to the Gods.

Whether on not Medea is, or should be, criminally culpable is an open question though lying on thoroughly ambiguous moral ground. Medea was obviously distraught at the time she developed her plan for revenge. The murders were premeditated to the extent that she did not commit them on the spur of the moment. However, she developed the plan at a time when she was quite obviously not emotionally stable. And the duration of the time from when she first conceived of the plan to the time when she executed it was short.

In addition to this, there is the question of provocation. In law, if a person commits a crime in consequence of being provoked, their criminal liability could be diminished to the point of being non-existent. It isn’t clear whether Jason’s conduct would be viewed as “adequate provocation” to cause Medea to commit multiple murders — presumably, it was not unheard of conduct at the time the play was written — although it would be difficult to argue that Medea’s committing the murders had nothing to do with her being cast off, and banished. She lived in a society in which she seems to have had no recourse to any form of justice, as a “barbarian” woman she was especially disadvantaged, and being exiled would have left her in an entirely hopeless position.

Medea states in the play that she knows her own mind, and that she knows that what she is doing is wrong. However, given that the act which seems to have spurred her to commit the murders is her banishment with immediate effect by Creon, Glauce’s father, it is unlikely that she did actually know her own mind.

She managed (by being manipulative) to get a twenty-four hour grace period from Creon, during which time she both planned and executed the murders. Jason arrived to meet her after Creon left her, and insulted her. It was in these twenty-four hours that she planned and committed the murders. In the play, she is simply not decisive with regard to murdering her children until the last possible moment.

Medea unequivocally states in the play that she is an autonomous individual — an assertion which in itself would have been questionable especially given that women were subject to the rule of men in a very literal sense with little autonomy of their own. Perhaps in the way that Glauce seems to have been little beyond a pawn in the schemes of her father and Jason, and who died because of those schemes.

Medea, however, managed to thoroughly subvert Jason’s schemes, and escape the consequences of her actions. At the end of the play, she is shown escaping in a chariot provided by the Gods — leaving no doubt of whom they supported. She speaks in a voice which is reminiscent of that used by the Gods, cold and distant. Driven to murder by Jason, she is ultimately far removed from emotion itself, it would seem.

Image: Medea by Sandys from WikiCommons

(This article is by Nandita Saikia and was first published at LawMatters.in.)

Rehauling Sexual Assault Law in India

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Comments on the Proposed Amendments to Criminal Law

The Criminal Law (Amendment) Bill, 2010 has been made available.  The Bill contains proposed amendments to two laws: the Indian Penal Code and the Criminal Procedure Code. The former is a substantive law while the latter is a procedural law. In other words, the Penal Code states what would constitute and offence and what the punishment for such offence would be. The Criminal Procedure Code, on the other hand, specifies the procedure required to be followed to implement the law laid down in the Penal Code.

The Bill, inter alia, redefines rape by proposing to amend Section 375 of the Indian Penal Code in the following terms:

A man is said to commit “sexual assault” if he –

(a) penetrates the vagina, the anus or urethra or mouth of any woman with

(i) any part of his body; or

(ii) any object manipulated by such man

except where such penetration is carried out for proper hygienic or medical purposes;

(b) manipulates any part of the body of woman so as to cause penetration into the vagina, the anus or the urethra of the offender by any part of the woman’s body;

(c) introduces any part of his penis into the mouth of woman,

under the circumstances falling under any of the following six descriptions:-

Firstly.-Against her will.

Secondly.- Without her consent

Thirdly.- With her consent when such consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.

Fourthly.- With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes to be lawfully married.

Fifthly.-With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that action to which she gives consent.

The exception for medical/hygienic purposes in Section375(a), however, doesn’t seem to require consent. What this would mean is that if the penetration were for medical purposes, and such purposes are not defined, the doctor, would not be required to obtain the consent of the woman so as to avoid falling foul of the provisions of this section if the proposed amendment were to become law. This, of course, could be considered to fly in the fact of the lived experiences of many women. It completely denies the existence of medical rape. It would also seem to exclude from the scope of sexual assault such things as medical students performing pelvic exams on unconscious women without their consent. While it is possible to see the requirement for such an exception, it is difficult to understand why the exception does not state: “except where such penetration is carried out for proper hygienic or medical purposes with the consent of the woman.”

After defining sexual assault, the proposed amendment then states the punishment for sexual assault and lists specific sexual assaults which would be dealt with in a stricter manner in Section 376 of the Indian Penal Code. Under Section 376(1), sexual assault would normally be punishable with imprisonment of either description for a term which shall not be less than seven years but which may be for life and, possibly, also a fine. Under Section 376(2), sexual assault by certain persons and/or under certain circumstances would be treated more seriously. Specifically:

Whoever,-

(a) being a police officer commits sexual assault -

(i) within the limits of the police station to which he is appointed; or

(ii) in the premises of any station house whether or not situated in the police station to which he is appointed; or

(iii) on a women in his custody or in the custody of a police officer subordinate to him; or

(b) being a public servant, takes advantage of his official position and commits sexual assault on a woman or minor in his custody as such public servant or in the custody of a public servant subordinate to him; or

(c) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a women’s or children’s institution takes advantage of his official position and commits sexual assault on any women or minor inmate of such jail, remand home, place or institution; or

(d) being on the management or on the staff of a hospital, takes advantage of his official position and commits sexual assault on a woman in that hospital; or

(e) being relative of, or person in a position of trust or authority towards, the women assaulted commits sexual assault with such woman; or

(f) commits sexual assault on a woman knowing her to be pregnant; or

(g) commits sexual assault on a woman when such woman is under eighteen years of age; or

(h) commits gang sexual assault,

(i) being in a position of economic or social or political dominance commits sexual assault on a woman under such dominance, or

(j) commits sexual assault on a woman suffering from mental and physical disability, or

(k) while committing sexual assault causes grievous bodily harm, maims or disfigures or endangers the life of a woman, or

(l) commits persistent sexual assault,

shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be imprisonment for life and shall also be liable to fine.

Thus, Section 376(2), if passed, would be an enhanced version of the current law as it introduces some new provisions such as that which deals with sexual assault by relatives.

Further, in the case of certain persons such as those who are in positions of authority or are public servants, sexual intercourse which does not amount to sexual assault would also be an offence under Section 376B of the Indian Penal Code in specified circumstances. If the perpetrator had taken advantage of his position and induced or seduced any woman either in his custody or under his charge or present in the premises and has sexual intercourse with her, the sexual intercourse would amount to sexual assault. The punishment for such an offence would be either simple or rigorous imprisonment for a term which may extend to 10 years but shall not be less than 5 years and, possibly, also a fine.

There has also been proposed an amendment to the Indian Penal Code (Section 376A) to deal with the sexual intercourse by a husband upon his wife during separation. Under this provision:

Whoever commits sexual assault with his own wife, who is living separately under a decree of separation or under any custom or usage without her consent shall be punished with imprisonment of either description, for a term which shall not be less than two years but which may be extend to seven years and shall also be liable to fine.

Despite the hype about the proposed amendments regarding rape being gender-neutral, it is clear from Sections such as 376(2) that many of the provisions are gender-specific. For example, sexually assaulting a disabled woman would, at least theoretically, under Section 376(2)(j) result in an enhanced punishment but there would be no such enhancement of the punishment if the victim were male.

Also, the provision of Section 376(2)(g) which states that those who commit ”sexual assault on a woman when such woman is under eighteen years of age” is unclear. It has also been proposed to add a Section (dealt with later in this post) which deals with the sexual assault of minors with a minor being defined as a person who is under the age of 18. Section 376(2)(g) deals with the sexual assault of women in this same age group. It is not clear why it has been thought to be necessary to have two provisions which deal with the sexual assault of female minors, or which Section would actually apply in such a case.

One explanation would be that Section 376(2)(g) actually intends to deal with the age of consent. However, if this is the intention, it is not truly reflected by the wording of the law. Assuming that Section 376(2)(g) lays down the age of consent for women and states that it is 18 years of age, whether this age is too high is debatable. What appears to be a lacuna here, however, is that the age of the man is not taken into consideration at all. There should probably have been a proviso inserted into this clause which so that it would come into effect only if the other person involved was “x” number of years older than the complainant/victim. In other words, it is probably not ideal to have a law which states that if one person was 18, and the other 19, the consent of the 18 year old would be immaterial since, presumably, the reason for having an age of consent is to protect minors from adults, and not from other minors or from persons who are at the threshold of majority.

The provision which is proposed to be inserted into the Penal Code to deal with the sexual abuse of minors states:

(1) A person is said to commit “sexual abuse of minor” against a minor under the age of eighteen years if the person-

(i) penetrates his penis into the vagina, the anus or urethra or the mouth of a minor;

(ii) manipulates any object or part of his or her body or that of the minor so as to cause penetration into the vagina, the anus or urethra or mouth of any minor with or without the will or consent of the minor.

Explanation-Mere penetration is a sexual assault within the meaning of this section.

(2) Whoever commits any offence of sexual abuse of minor shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.

(3) Whoever, with sexual intent, invites, counsels or incites or exhibits pornography a minor to touch, directly or indirectly, with a part of the body or with an object, the body of any minor, including the body of the person who so invites, counsels or incites, or touches, with sexual intent, directly or indirectly, with a part of the body or with an object, any part of the body of a minor, shall be punished with imprisonment of either description which may extend to ten years.

(4) In this section,- (a) ‘minor’ means – a person under eighteen years of age.

There have been discussions about the need for such an amendment to the law for many years now. So far, it has only been possible to deal with child abuse under the existing Section 377 of the Indian Penal Code which deals with so-called unnatural offences. The Section has been notorious for its widespread misuse — consenting adult homosexuals have routinely reported being threatened with its implementation since the Section makes homosexual acts an offence even if they are between consenting adults.

As mentioned at the beginning of this piece, it has also been proposed to amend the Criminal Procedure Code so implement the changes in the Penal Code. Strangely enough, with respect to child sexual assault, the following amendment has been proposed:

198B. No court shall take cognizance of an offence punishable under sub-section (2) or sub-section (3) of section 376C of the Indian Penal Code, except upon a police report of facts which constitute such offence or upon a complaint made by the person aggrieved by the offence or by his father, mother, brother, sister or by his father’s or mother’s brother or sister or by any other person related to him by blood or adoption, if so permitted by the court.

This means that in cases of child sexual abuse, a complaint may only be filed by the victim or certain relatives of the victim. It does not seem realistic to expect a child to file, or even be able to file, a complaint. And, considering the way in which child sexual abuse, particularly when the abuser is a relative, is veiled in Indian society, it is extremely difficult to understand why relatives would be listed as the only possible complainants other than the victim. Under this provision, it appears that a complaint cannot be made by such persons as doctors and other health-care providers, caregivers or educators who may, in fact, be in a better position than relatives to make such a complaint.

Once a complaint has been made though, and the trial is in progress, it has been proposed to insert a provision into the Criminal Procedure Code which would allow the judge to take appropriate measures to ensure that the alleged minor victim of sexual assault or any other sexual offence is not confronted by the accused, although the court must also uphold the right of cross-examination of the accused.

Thus, although the aim seems to be to redefine and restructure sexual assault law in India, the proposed amendment, as it now stands, is not without its flaws.

By Nandita Saikia

 

Wherever, Whenever, Whatever

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Lunar libration

It isn’t unusual to have a contract which assigns “all rights in perpetuity throughout the world”. Obtaining worldwide rights isn’t enough to satisfy some entities though and they’ve begun to have contracts drafted in which rights are assigned “throughout the universe”.

The phrase “throughout the universe” isn’t commonly used in India but seems to be becoming relatively common in some parts of the world. It seemed like a massive overkill, so the first time I saw it (in a Publishing Agreement), I discussed it with a lawyer who gave me a rather strange look and then told me that she usually defines the territories to which a contract pertains in terms of countries or continents, adding that that should pretty much cover it.

A recent article in the WSJ – Lawyerese Goes Galactic as Contracts Try to Master the Universe – might explain the phenomenon though: “Paranoia is Paramount”. So, when you’re trying to ensure that you’ve covered every possible base, you define your territory as “the Universe”. And you might also come up with other manifestations of Paranoia by using phrases like “from the beginning to Time”.

Such overkills are sometimes defended by saying that they are “efficient and reliable” methods to ensure that there are no limitations or restrictions. However, personally, I think I’d prefer to use terms like “without territorial limitations” than to use futuristic terms like “the Universe” in defining a territory.

Of course, “without territorial limitations” has its limitations too: would without territorial limitation refer to Earth alone and not apply to, well, outer space? And if one were to use a phrase such as “all over the Earth and in space”, would that mean that the rights granted in a contract could not be exercised on Neptune because it may not technically be “space” since it is an “ice giant”? If a lawyer suspects that these are issues which may cause litigation in future, he would probably do well to define the territory as “the Universe”.

However, considering that we’re probably nowhere near conducting inter-galactic commerce, or even inter-planetary commerce within our own solar system, it would probably not be necessary to define a contractual territory so broadly. That being said, today, there are often situations in which parties to contracts find themselves embroiled in disputes because contracts which they signed thirty years ago did not take into consideration the development of the Internet or the creation of a number of “new” methods to exploit various rights such exploitation through DVDs with reference to the copyright in Films. When it comes to IP contacts, it’s now almost standard practice to say that the rights granted “may be exploited using any technology currently known or developed in the future”.

Talking about the Universe does nothing beyond taking into account massive technological advances that would change the territory in which rights could be exploited. After all, the possibility of there being human settlements on the far side of the moon in less than a century’s time may not be nil.

Perhaps using terms which now seem futuristic isn’t about Paranoia but about Prudence. Who knows? Just maybe, the world (?) portrayed in Star Trek will be reality in the not too distant future.

Addendum: After all, scientists already seem to have found water on the moon. And there are debates beginning to emerge about whether the resources on the moon can be exploited by any country — the Treaty of the Moon has been ratified by less than two dozen States, and none is them is really into exploring space. As such, it isn’t the most effective treaty which has ever been signed.

(This article is by Nandita Saikia and was first published at LawMatters.in.)

Interim Injunctions and Patent Litigation

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Temporary or interim injunctions are orders to stop or prevent harm to disputed property in a suit. They remain in force till the suit is disposed of or until further orders are made by the court. The Patents Act itself does not deal with interim injunctions so their grant is governed by the Code of Civil Procedure. Under Order 39 of this Code, they may be granted under a number of circumstances. For example, they may be granted if the property is in danger of being wasted, damaged or alienated by any party to the suit. They may also be granted if a debtor threatens or intends to remove or dispose of his property to defraud his creditors, or if the defendant in a suit threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to the disputed  property. The harm to the property in question may be proved by affidavit or otherwise.

Contracts involving intellectual property often have clauses buried somewhere in their depths to the effect that:

ABCD acknowledges that in the event of a breach or, in the opinion of the Company, a threatened or possible or potential breach of the terms of Clause 6 (relating to the protection of Intellectual Property), the Company shall be entitled to injunctive relief (including interim injunctions) in addition to any other remedy including a claim for monetary damages. ABCD acknowledges and agrees that the Intellectual Property is valuable, unique, confidential and proprietary, and that disclosure of any Confidential Information in breach of this Agreement will result in irreparable injury to the Company.

In addition to this, there are also often clauses which specifically speak of companies’ rights to obtain interim injunctions “to maintain the status quo” while arbitration is in progress. And while that’s all very well when the alleged infringer has entered into a contractual relationship with the owner of the intellectual property, the fact of the matter is that alleged infringers rarely enter into such arrangements with the owners of intellectual property.

Unfortunately — or fortunately, depending on which side of the track you’re standing — the general understanding, in India, has been that Courts usually refuse to grant interim injunctions in patent litigation. Based on a not insignificant list of case law, this belief is hardly unjustified. [1] The basis for the belief, however, seems to be changing. The conditions required to be satisfied for the grant of an interim injunction remain unchanged. Firstly, there should be a prima facie case in favour of the patentee-plaintiff. In this context, that effectively means that the plaintiff must demonstrate that his patent is valid and that it has (at first glance) been infringed. Secondly, the patentee must show that the balance of convenience is in his favour, and finally, the patentee must demonstrate that he will suffer an irreparable loss should an interim injunction be refused.

In the case of Bajaj Auto Ltd. v. TVS Motor Company Ltd. [2008 (36) PTC 417 (Mad)], [2] the High Court of Madras granted an interim injunction to the plantiff, Bajaj Auto, in respect of a patent titled “An improved Internal combustion engine working on a four stroke principle”. And in another case — Mariappan v. A. R. Safiullah [2008 (38) PTC 341 (Mad.)] — the same High Court granted another inother interim injuction. In these cases, in considering whether the basic conditions for the grant of an interim injunction were satisfied, various factors were looked at. For example, the Court tackled the issue of whether the registration of a patent under the Patents Act would entitle it to be considered to be valid prima facie. Interpreting Section 13(4) of the Patents Act [3] — bearing in mind that Bajaj has argued for a ‘harmonious interpretation of Sections 13(4) and 48 (which lists the rights of patentees) of the Patents Act — the Court decided that the registration of a patent does not in itself create any presumption of validity although the Court did reaffirm the controversial and inexplicable ‘six-year rule’ — a rule according to which a patent should be presumed to be valid if it is more than six years old and has been used.

It may, however, be premature so say that there is now a trend allowing for the grant of interim injunctions in light of the case of F. Hoffmann la Roche Ltd., and Anr. v. Cipla Limited [2008 (37) PTC 71 (Del.)] in the Delhi High Court. Following the approach in the American Cyanamide case, the Roche v. Cipla case also, thankfully, diluted the six-year rule and treated pricing as one of the factors to be considered while deciding whether or not an interim injunction should be granted. In addition to this, the Delhi High Court also refused to grant an interim injunction to Braun to restrain Poly Medicure in the matter of B. Braun Melsungen AG & Ors. v. Rishi Baid & Ors. IA 1234/2008 in CS (OS) 186/2008. The court did, however, as had been done in the Bilcare matter, direct the alleged infringers to keep accounts of the manufacture and sale of the of the of the product whose patent they had been accused of infringing.

(This article is by Nandita Saikia and was first published at LawMatters.in.)

Footnotes:

1. Corruplast Ltd. v. George Harrison (Agencies) Ltd. [1978 RPC 761]; Standipack Pvt. Ltd. v. M/s Oswal Trading Co. Ltd. (2000, Delhi High Court); J. Mitra & Co. Pvt. Ltd. V. Kesar Medicaments: IA No. 11883/2006 in CS (OS) 2020/2006; Garware v. Mr. Kanoi (2006, Gujarat High Court); Bilcare Ltd v. Amartara Pvt. Ltd. [(2007) (34) PTC 419 (Del)]; Bilcare v. Associated Capsule (2007, Delhi High Court)

2. Reported as Patent Number 195904 online; appears to be:
Gazette: 25/12/04 
 Filing Date: 10/30/2003 
 Reference No.:  PCT/IN03/00348
Applicant: Bajaj Auto Ltd. T
itle:  Improved Internal Combustion Engine Working on Four Stroke Principle
 Class: Mech, G
 Convention: N
 S. No.: 80209

3. Section 13(4): The examination and investigations required under section 12 (examination of patent applications) and this section shall not be deemed in any way to warrant the validity of any patent, and no liability shall be incurred by the Central Government or any officer thereof by reason of, or in connection with, any such examination or investigation or any report or other proceedings consequent thereon.