Category Archives: News

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.

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.

The Pirates Flounder

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By Shyam Somanadh

Entertainment Industry Wins Pirate Bay Case, Loses $390 MN business opportunity

By now it is all over the place that Pirate Bay (or at least the four defendants) has lost its lawsuit regarding their enablement of piracy using the website. Neither will this ensure that piracy related to entertainment will come to an end, nor will this ensure that artists will find another way to monetize their efforts beyond what the entertainment industry can offer.

I have no quibble with the fact that piracy is bad, what I do have a problem with is the fact that on the one hand organizations like RIAA are only happy to sue the pants off file sharers, citing ever declining numbers in their businesses, while on the other, they refuse to see that not everyone who is using P2P has price point zero as the only acceptable price range.

At this very moment, Pirate Bay’s trackers are supporting over 22,387,439 seeders and leechers over IPv4, there is a much smaller number on their IPv6 network. That is a huge number of people who are actually acquiring content, concurrently. Well, to be precise, 22 million of them in one go. And we are not even counting the users on the other networks.

If the entertainment industry can see this only as an opportunity to sue 22 million people and get a dollar off each of them they deserve to die the painful death they are undergoing now. If they can see the 22 million as a live and kicking market, they deserve to live and live well.

For those who argue that piracy is free are sadly mistaken. Every download is paid for at some point in the chain. If you do that in your office, it is your company that foots the bill. If you do it at your home, you pay for it with your DSL/Cable bill. In effect, there is no ‘free’ in the equation here, there is already a value attached to it, even when you are leeching off a torrent. The only problem in the whole picture is that the ones who are getting paid are neither the content creators, nor it is the distributors who get paid.

So, who gets paid?

The telcos who sell you bandwidth and the connection are the ones who profit most by it. Even as sneaky as that can be, it is not their fault either that people use torrents and P2P to get their fix. The fact remains that there is no simple, sane and legitimate way to consume content at a reasonable price point at the moment. The entertainment industry has always refused to embrace innovation on that front. They should de-incentivize piracy, by working hard to make non-pirated content easily available.

Instead, what do they do? They spend their time trying to keep price levels at the highest possible points, trying to maximize their margins and holding on to the days of glory days of CD and cassette tape sales, than trying to open their eyes to the new reality that this will work in their favour only if they play for scale. The average person probably does not download more than 30 songs a month on the internet. Why is it not possible to address that need at a flat rate which would make it much easier for everyone to understand and legitimately participate in the process.

You don’t even need to convert the entire 22 million users connected to the Pirate Bay tracker to make this work. At even 25% conversion, that is 6.5 million users in a month. Those users shelling out $5 per month for 30 tracks, without DRM is worth about $32.5 million in monthly revenues and $390 million in annual revenues. I am playing easy with the numbers here, but my point is valid, there is a massive business opportunity here, which is getting ignored.

Even with DRM, Apple and the iTunes franchise has shown that people can and will pay for entertainment given the right experience and a useful price point. But really, why is Apple owning that space, with Amazon competing hard with them on that front? Why is the entertainment industry a no-show here, other than the rare moments when they shake themselves out of their stupor, and trying to up their margins per track sold?

Piracy is really no news. It has been there before the internet was created and it will continue to remain with us as long as we are around. What the entertainment industry needs to recognize is that they need to change their business models and the way they operate now. And every day they spend chasing these people in court with victories that result in a minor blip on the global piracy radar, is another day they are losing to save their own livelihoods.

The National Flower

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It doesn’t seem too unreasonable at first glance to say that a national symbol should not be used by a political party for political gain. That is essentially what Shaheen Parvez has been saying for some five years now. However, on March 16, 2009, the Supreme Court dismissed a Special Leave Petition she filed on the issue.

It was contended in the SLP that the lotus which is the BJP’s symbol cannot be used by the party because such use would be against the Emblems and Names (Prevention of Improper Use) Act. This is the statute which prevents such symbols as the Ashoka Chakra (and a whole host of others) from being used in a number of ways such as in the names of commercial establishments.

This SLP which sought the cancellation of the lotus symbol allotted to the BJP was made against a December 2008 Delhi High Court Order and was dismissed at the admission stage itself by a Bench of the Supreme Court comprising Chief Justice K G Balakrishnan, Justice Sirpurkar and Justice Sathashivam.

The petitioner said that she wrote letters to the Election Commission in 2004 and 2005 asking for the cancellation of the symbol but the Commission turned her down saying that the symbol had been reserved by the BJP for some twenty-five years prior to which it had been used by independents. It was after this that the petitioner approached the Delhi High Court. After failing there too, she approached the Supreme Court.

The apex Court, however, did nothing at all towards preventing the party from using the symbol.

Reference: The Hindu; March 17, 2009

Copyright Lingo

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That copyright tends to create a language of its own isn’t something which is entirely surprising to anyone familiar with it. There are both advantages and disadvantages to intellectual property and the debate whether public interest is well served by the protection of private interests via the medium of intellectual property has been going on for a while now.

Intellectual property is not an especially old form of property. Copyrights, for example, were first seen in the year 1710 and arose to protect the monopoly the Stationers had earlier enjoyed as members of the Company of Stationers of London which basically acted as a private censor for the Crown. By 1710, the Crown became much less finicky about the publication and dissemination of seditious material which resulted in the stationers effectively being out of a job.

The members of the defunct company responded by petitioning Parliament to protect the intellectual property of literary works by creating an author’s copyright which they assumed (correctly) would be assigned to them. And ever since, the publishing lobby has lobbied for stronger and stronger copyright protection.

Not too surprisingly, copyright is now considered by many outside the ‘copyright community’ to be completely out of whack since it protects the private interests of copyright owners (usually publishing corporations) to an absurd degree.

In some cases this is seen in the Indian Copyright Act itself. For example, in 1994, the law was amended so that communication to the public for the purpose of determining whether or not infringement had occurred did not require any member of the public to have actually seen or heard the work communicated. In other words, the copyright is infringed by the mere transmission of the work to the public and not its communication to the public. Considering that one of the aims of copyright law is presumably not the recreation of the English language, the term communication in the statute is misleading.

Reinterpreting English in completely non-orthodox ways is not limited to legislators though. In a recent order in the case of Urooj Ahmed vs. Maya Appliances (A. No. 5533/2008 in  C S 949/2008), Justice Shivakumar of the Madras High Court decided that a suit for the infringement of a design can be filed in the place where the plaintiff resides by his interpretations of the Copyright Act and the Designs Act.

In general, a suit must be filed where the defendant resides but Section 62 of the Copyright Act institutes an exception to this rule by saying that a suit for infringement may be filed where
the plaintiff resides. There is no such provision which exists in the Designs Act but relying on Section 11 of the Designs Act which says that the registered proprietor of a design owns the copyright in the design, Justice Shivakumar has decided that the provision regarding jurisdiction in Section 62 of the Copyright Act also applies to designs under the Designs Act.

To come to such a conclusion, the assumptions seem to have been that (a) the copyright which exists in a design is the same as the copyright which exists in those works protected by the Copyright Act and (b) that copyright infringement under the Copyright Act is analogous to the infringement of a design.

The result: designs have been afforded protection not envisaged by law because of a creative interpretation of the law.

Image Source – Wikimedia Commons

 

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