Monthly Archives: June 2011

The 44th Session In Vienna Of United Nation Commission On International Trade Law (UNCITRAL)

United Nations Commission on International Trade Law (UNCITRAL) is currently holding its 44th Session from 27 June to 8 July 2011. It would discuss many important aspects having a direct bearing upon International issues.

This is a very important Session as it is covering many crucial issues that have Trans Border implications. Further, UNCITRAL is also acting as a “Harmonisation Platform” where International Norms and Regulations are formulated for wider international adoption. Among other issues, the finalisation and adoption of draft texts on procurement and insolvency will be key topics for consideration.

The revised text of the UNCITRAL Model Law on Public Procurement, to be considered by the Commission, extends the application of the Model Law to all public procurement, streamlines and strengthens provisions in a number of areas, in particular on remedies and enforcement, and includes new provisions, such as on e-procurement, abnormally low submissions, conflicts of interest, electronic reverse auctions and framework agreements.

The revisions are aimed at assisting States in formulating modern procurement laws where none presently exist or modernising and enhancing their existing procurement law. While developing countries and States whose economies are in transition may find the text of particular benefit, its provisions are intended to be applicable to all States.

Further, another important issue that would be discussed at this Session pertains to finalisation and adoption of judicial materials on the UNCITRAL Model Law on Cross-Border Insolvency. If agreed by the Commission, it is expected that the updating would be undertaken by the Secretariat in consultation with judges and, as appropriate, other insolvency experts.

In the area of technical assistance, the UNCITRAL Secretariat will also inform the Commission of recent developments with regard to the potential establishment of UNCITRAL regional centres and activities to be undertaken by such centres.

The agenda for the meeting also includes reports from working groups, including progress reports on the preparation of texts on transparency in treaty-based investor-State arbitration, online dispute resolution for cross-border electronic commerce transactions and registration of security rights in movable assets.

The coordination of UNCITRAL’s work with that of other international organisations active in the field of international trade law, its role in promoting the rule of law, its possible endorsement of the revision of the ICC Uniform Rules for Demand Guarantees and its potential future work are also scheduled for discussion. This is an important session and its outcomes would be very relevant for numerous aspects of International Trade and Dispute Resolution.

ICANN’s New GTLDs Registration Application Filing And Due Diligence Services

Internet Corporation for Assigned Names and Numbers (ICANN) has recently approved allotment of new generic top level domain names (new gTLDs). This is good news for brand and trademark owners who can now register their brands and trademarks as the gTLDs.

While this is good news yet this decision of ICANN is not free from troubles and unforeseen challenges. Even the filing of a gTLD application would not be an easy task and would require techno legal expertise.

ICANN has already laid down stringent conditions for the acceptance of an application for registration of new gTLD as per its Applicant Guidebook. Even the US $ 1, 85,000 costs for filling an application for new gTLD would keep out non serious and middle sized companies from applying for a gTLD.

However, this high cost is not a “guarantee” that the application would be accepted by mere filing. ICANN has clearly said that only “bonfide applicants” would be allotted the applied gTLD. The gTLD application would be minutely scrutinised before allowing the same.

Here lies the importance of a “gTLD due diligence service” that analysis the possibilities of allotment of the proposed gTLD. At Perry4Law and Perry4Law Techno Legal Base (PTLB) we specialise in techno legal issues including domain name registration and domain name dispute resolution services.

Further, with an increase in new gTLDs registrations, issues like domain names protection, brands protection, trademarks protection, cybersquatting disputes resolution, cyber law compliances, cyber security requirements, cyber due diligence, etc would also arise. Brand owners and trademark owners must prepare their “strategy” in this regard well in advance.

The new gTLDs application process would start from 12 January 2012 to 12 April 2012. Brand owners and trademark owners need to ensure “due diligence” in this regard as soon as possible as that would give them additional time to ensure that their applications are accepted.

Role And Responsibility Of Internet Intermediaries In The Field Of Copyright In India

Intellectual property rights in India (IPRs in India) consist of copyright, trademarks, patents, geographical indications, etc. With the passage of time, technology has also become an integral part of IPRs protection and their violations.

For instance, trade secrets are stolen through cyber crimes, domain name protection is missing, copyright law of India does not address online copyright violations effectively, etc. In short, technological issues of IPRs in India need to be taken care of by the Parliament of India.

The traditional theories of attributing liability to as copyright violator in an online environment are not suitable and we need a liability framework that is expressly applicable to online copyright violation cases.

Countries like United States have created dedicated laws like online copyright infringement liability limitation act (OCILLA) in this regard. However, in India we have no such dedicated law for dealing with online copyright violations cases.

Of course, by “purposive interpretation” we can apply the existing laws to the online copyright violations cases yet in the long run it would prove to be counter productive.

In the Indian context, the Indian Copyright Act 1957 along with the Information Technology Act 2000 deals with cyber law due diligence and intermediaries’ liability for online copyright violation issues. The indirect reference to online copyright issues can be found in these laws.

(1) Copyright Act, 1957 and on-line copyright issues: The following provisions of the Copyright Act, 1957 can safely be relied upon for meeting the challenges of information technology:

(a) The inclusive definition of computer u/s 2(ffb) is very wide which includes any electronic or similar device having information processing capabilities. Thus, a device storing or containing a copyrighted material cannot be manipulated in such a manner as to violate the rights of a copyright holder.

(b) The copyrighted material can be transferred or communicated to the public easily and secretly through electronic means. To take care of such a situation, the Copyright Act has provided the circumstances which amount to communication to the public. Thus, making any work available for being seen or heard or otherwise enjoyed by the public directly or by any means of display or diffusion other than by issuing copies of such work regardless of whether any member of the public actually sees, hears or otherwise enjoys the work so made available, may violate the copyright. The communication through satellite or cable or any other means of simultaneous communication to more than one household or place of residence including residential rooms of any hotel or hostel shall be deemed to be communication to the public.

(c) The copyright in a work is infringed if it is copied or published without its owner’s consent. The Copyright Act provides that a work is published if a person makes available a work to the public by issue of copies or by communicating the work to the public. Thus, the ISPs, BBS providers, etc may be held liable for copyright violation if the facts make out a case for the same.

(d) The copyright in a work shall be deemed to be infringed when a person, without a licence granted by the owner of the copyright or the Registrar of Copyrights under this Act or in contravention of the conditions of a licence so granted or of any condition imposed by a competent authority under this Act-

(i) Does anything, the exclusive right to do which is by this Act conferred upon the owner of the copyright, or

(ii) Permits for profit any place to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the work, unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright.

It must be noted that copyright can be obtained in a computer programme under the provisions of the Copyright Act, 1957. Hence, a computer programme cannot be copied, circulated, published or used without the permission of the copyright owner. If it is illegally or improperly used, the traditional copyright infringement theories can be safely and legally invoked.

Further, if the medium of Internet is used to advance that purpose, invoking the provisions of the Copyright Act, 1957 and supplementing them with the stringent provisions of the Information Technology Act, 2000, can prevent the same.

(2) Information Technology Act, 2000 and on-line copyright issues: The following provisions of the Information Technology Act, 2000 are relevant to understand the relationship between copyright protection and information technology:

(a) Section 1(2) read with Section 75 of the Act provides for extra-territorial application of the provisions of the Act. Thus, if a person (including a foreign national) violates the copyright of a person by means of computer, computer system or computer network located in India, he would be liable under the provisions of the Act.

(b) If any person without permission of the owner or any other person who is in charge of a computer, computer system or computer network downloads, copies or extracts any data, computer data base or information from such computer, computer system or computer network including information or data held or stored in any removable storage medium, he shall be liable to pay damages by way of compensation to the person so affected. Thus, a person violating the copyright of another by downloading or copying the same will have to pay exemplary damages which may be deterrent enough to prevent copyright violation.

(c) While adjudging the quantum of compensation, the adjudicating officer shall have to consider the following factors:

(i) The amount of gain or unfair advantage, wherever quantifiable, made as the result of the default;

(ii) The amount of loss caused to any person as a result of the default;(iii) The repetitive nature of the default.

Thus, if the copyright is violated intentionally and for earning profit, the quantum of damages will be more as compared to innocent infringement.

(d) An “intermediary” may be exempted from liabilities of online copyright violation issues if it meets the requirements of section 79 of the information technology act 2000. However, if the intermediary fails to observe “due diligence”, this safe harbour provision would not protect it.

(e) The provisions of this IT Act 2000 shall have overriding effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force.

We at Perry4Law and Perry4Law Techno Legal Base (PTLB) strongly recommend that the information technology act, 2000 and Indian copyright act 1957 requires a new outlook and orientation, which can be effectively used to meet the challenges posed by the IPRs regime in this age of information technology.

Copyright Law of India needs urgent amendments. Although Indian Copyright Act is due for amendments yet digital issues of Indian Copyright Act 1957 are still to be addressed by Indian Legislature. The Copyright Amendment Bill 2011 of India would be introduced very soon but it is still far from perfect to cover these issues.

Till the country has such a sound and strong legal base for the protection of IPRs, the judiciary should play an active role in the protection of these rights, including the copyright and intermediaries’ rights.

ICANN 41 Is More Than A GTLD Meeting

The Internet Corporation for Assigned Names and Numbers (ICANN) would hold the Second Public Meeting of the year on 20th June 2011 at Singapore. One of the issues that would be discussed by ICANN there pertains to introduce an unlimited number of new Generic Top-Level Domain Names (GTLDs).

However, this is not the only issue that would be discussed at that meeting. Despite contrary claims, ICANN would also discuss many more “Crucial Issues”. For instance, ICANN’s Board of Directors would vote on whether to finalise the Applicant Guidebook, a 348-page document that explains how any established Institution (such as a Government, Business, or Non-Profit Organisation (NGO)) can apply to operate a Generic Top-Level Domain Names (GTLD) of its own choosing. If the Board approves the Guidebook as final, the process of issuing new GTLDs would start.

ICANN would also consider other crucial issues like Internationalised Domain Names (IDNs), Inter-Registrar Transfers, New gTLD Applicants from Developing Countries, etc. These are just a few examples of dozens of topics that the ICANN Community will discuss during a week containing more than 120 panels, presentations, workshops and other sessions.

However, some of the issues deserve an “Indepth Analysis”. These proposals have far reaching consequences for Domain Name, Brands holders, Trademark owners and even for International Organisations like ICANN and World Intellectual Property Organisation (WIPO). This decision would give a new meaning to Domain Names Protection, Brands Protection, Trademarks Protection, Cybersquatting Disputes Resolution, Cyber Law Compliances, Cyber Security requirements, Cyber Due Diligence, etc.

Further, these changes would also require “Better Dispute Resolution Mechanisms” than the existing ones. For instance, transfer-related issues are the number one area of complaint according to data from ICANN Compliance. Should there be a process or special provisions for the urgent return of a hijacked domain name? The GNSO Council votes on the issue Wednesday and in all probability it would be answered in affirmative.

Naturally, these GTLDs are in great demand and there would be attempts to squat famous Brands and Trademarks of others. ICANN should stringently deal with such attempts by allotting the GTLDs to only “Bonafide Applicants” after verifying their “Claims”. The traditional Domain names are frequently hijacked and Cyber Squatting cases have increased dramatically.

The present allotment of GTLD would also face similar problems if an effective “Pre Screening Procedure” along with “Reasonably High Application Fee” is not prescribed by ICANN. ICANN and WIPO would also be required to “Streamline” their Dispute Resolution Services keeping in mind the recent Technological Advances and changing nature of “Cyber Squatting Dispute Resolution Mechanism”.

However, the “High Cost” and “Bonafide Claim” issues would take us to another burning issue pertains to the “Capability” of Developing Countries and NGOs to apply for GTLDs. If the Board approves the “Expensive Process” for creating new GTLDs, Developing Countries may not be able to get the maximum benefit out of it.

Developing Countries may have a need for a new GTLD, but lack the “Financial Resources” to apply for and operate it would be a big hurdle. A Working Group comprised of members from ICANN Supporting Organisations and Advisory Committees has been considering how such groups might be funded if they apply for a GTLD/TLD. The Group offers a report on Thursday.

Online Copyright Infringement Liability Limitation Act Of US

The Online Copyright Infringement Liability Limitation Act (OCILLA) of United States (US) aims to amend the title 17, United States Code, to implement the World Intellectual Property Organisation (WIPO) Copyright Treaty and Performances and Phonograms Treaty, and for other purposes, as part of the Digital Millennium Copyright Act (DMCA).

The OCILLA is a US Federal Law that creates a “Conditional Safe Harbor” for Online Service Providers (OSP). These OSPs are also known as Internet Intermediaries or Intermediaries in some Countries and this category covers players like Internet Service Providers (ISPs), Search Engines, Blogging Platforms, E-Commerce Portals, Cyber Café, etc.

Safe Harbour protection is generally extended to Intermediaries from direct copyright infringement and potential secondary liability for the infringing acts of others. OCILLA was passed as a part of the 1998 DMCA and is sometimes referred to as the “Safe Harbor” provision or as “DMCA 512″ because it added Section 512 to Title 17 of the United States Code. By exempting intermediaries from copyright infringement liability provided they follow certain rules, OCILLA attempts to strike a balance between the competing interests of copyright owners and digital users.

The 1998 DMCA was the U.S. implementation of the 1996 WIPO Copyright Treaty (WCT) directive to “maintain a balance between the rights of authors and the larger public interest, particularly education, research and access to information” when updating copyright norms for the digital age. In the context of Intermediaries, OCILLA attempts to strike this balance by immunizing them for copyright liability stemming from their own acts of direct copyright infringement (as primary infringers of copyright), as well as from the acts of their users (as secondary infringers of copyright), provided that Intermediaries comply with two general requirements protecting the rights of authors.

First, the Intermediaries must “adopt and reasonably implement a policy” of addressing and terminating accounts of users who are found to be “repeat infringers.” Second, the Intermediaries must accommodate and not interfere with “standard technical measures.” Intermediaries may qualify for one or more of the Section 512 safe harbors under § 512(a)-(d), for immunity from copyright liability stemming from: transmitting, caching, storing, or linking to infringing material. An Intermediaries who complies with the requirements for a given Safe Harbor is not liable for money damages, but may still be ordered by a court to perform specific actions such as disabling access to infringing material.

In addition to the two general requirements listed above, all four safe harbors impose additional requirements for immunity. The safe harbor for storage of infringing material under § 512(c) is the most commonly encountered because it immunises Intermediaries that might inadvertently host infringing material uploaded by users.

Taken as a whole, OCILLA’s passage represented a victory for telecom and Internet related industry groups over powerful copyright interests who had wanted service providers to be held strictly liable for the acts of their users. However copyright owners also obtained concessions. In addition to the general and specific preconditions on the created immunity, OCILLA requires Intermediaries seeking an immunity to designate an agent to whom notices of copyright infringement can be sent, and to disclose information about those users who are allegedly infringers.

Section 512(c) applies to Intermediaries that store infringing material. In addition to the two general requirements that Intermediaries comply with standard technical measures and remove repeat infringers, § 512(c) also requires that the OSP: 1) not receive a financial benefit directly attributable to the infringing activity, 2) not be aware of the presence of infringing material or know any facts or circumstances that would make infringing material apparent, and 3) upon receiving notice from copyright owners or their agents, act expeditiously to remove the purported infringing material.
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Some have claimed that the DMCA-embedded concepts of direct financial benefit, interference with standard technical measures, and the legislative red flag test for identifying infringing material are significantly challenged by the explosion of user-generated content unleashed by Web 2.0 technologies.

The European Union’s Electronic Commerce directive, Article 14, contains similar notice and takedown provisions. France’s Digital Economy Law (“Loi relative à l’économie numérique”) is an example of an implementation of this directive, as is Finland’s “Laki tietoyhteiskunnan palvelujen tarjoamisesta.” In Korea, the analogous law is Section 102 (Limitation of OSP Liabilities) and Section 103 (Takedown) of Copyright Law of Korea.

In the Indian context, the Indian Copyright Act 1957 along with the Information Technology Act 2000 deals with Cyber Law Due Diligence and Intermediaries Liability for Online Copyright Violation issues.

Liability Of Internet Intermediaries For Copyright Violations

Intellectual property rights in India (IPRs in India) consist of copyright, trademarks, patents, geographical indications, etc. These laws are properly drafted as per their time. However, with the passage of time, information technology has been giving them a tough fight. Online issues of IPRs are becoming a headache for India.

For instance, trade secrets are stolen through cyber crimes, domain name protection is missing, copyright law of India does not address online copyright violations effectively, etc. In short, technological issues of IPRs in India need to be taken care of by the Parliament of India.

Copyright Law of India needs urgent amendments. Although Indian Copyright Act is due for amendments yet digital issues of Indian Copyright Act 1957 are still to be addressed by Indian Legislature. The Copyright Amendment Bill 2011 of India would be introduced very soon but it is still far from perfect to cover these issues.

The ease with which computers can transfer and exchange digital information on the Internet has caused concern among intellectual property owners, especially copyright owners. The information technology allows the computer users to easily and secretly transform the copyrighted materials into digital form and store them in their computer memory. Once a user digitised information, he can easily upload it to the Internet. Once the information is available on the Internet anyone in the world with Internet access can download, modify, and distribute it. Thus, in an instant, a copyrighted work can potentially lose its value and significantly suppress an author’s incentive to create new material.

Thus, with the advancement of information technology, copying, modifying, and distributing of copyrighted materials has become very simple and difficult to trace. The copyright owners are now at the mercy of a technology that has raced ahead of the law. Because the Internet “is a cooperative venture not owned by a single entity or government, there are no centralised rules or laws governing its use.

Traditionally there was only one copyright infringement theory known as “primary infringement”, which made the person infringing the copyright personally liable for his acts. Thus, the concept of third party liability or secondary liability was not recognised by the legal systems of various countries all over the world, including the United States. As the society progressed, need was felt to develop new theories to meet the challenges thrown by it. While there were no express provisions, which talked about infringing acts of another, third party liability theories were evolved in the courts over the years. The courts derived these theories from the traditional tort law and patent law theories of contributory and vicarious liability.

The U.S Supreme Court articulated the rationale for incorporating “third party liability” into the copyright law in Sony Corporation of America v Universal Studios, Inc. The court specifically noted patent law’s explicit statutory prohibition against inducing infringement and against contributory infringement, and held that the absence of express language in the Copyright Act did not preclude third party liability. Moreover, the court reasoned that “vicarious liability is imposed in virtually all areas of law, and the concept of contributory infringement is merely a species of the broader problem of identifying the circumstances in which it is just to hold one individual accountable for the actions of another.

Direct infringement is a strict liability offence and guilty intention is not essential to fix criminal liability. The requirements to establish a case of copyright infringement under this theory are:

(1) Ownership of a valid copyright; and
(2) Copying or infringement of the copyrighted work by the defendant.

Thus, a person who innocently or even accidentally infringes a copyright may be held liable under the Copyright Act of the U.S. and under the laws of various other countries. The guilty intention of the offender can be taken into account for determining the quantum of damages to be awarded for the alleged infringement.

The contributory infringement pre-supposes the existence of knowledge and participation by the alleged contributory infringer. To claim damages for infringement of the copyright, the plaintiff has to prove:

(1) That the defendant knew or should have known of the infringing activity; and
(2) That the defendant induced, caused, or materially contributed to another person’s infringing activity.

Vicarious copyright infringement liability evolved from the principle of respondent superior. To succeed on a claim of vicarious liability for a direct infringer’s action, a plaintiff must show that the defendant:

(1) Had the right and ability to control the direct infringer’s actions; and
(2) Derived a direct financial benefit from the infringing activity.

Thus, vicarious liability focuses not on the knowledge and participation but on the relationship between the direct infringer and the defendant.

Legal precedent for vicarious copyright infringement liability has developed along two general relational lines. The first relational line involves the employer/employee relationship, whereas the second involves the lessor/lessee relationship. The advent of information technology has made it difficult to apply the traditional theories to various cyberspace entities and organisations.
An Internet Service Provider (ISP) provides Internet access and he may be held liable for copyright infringement.

In Religious Technology Center v Netcom On-Line Communication Services, Inc a former minister uploaded some of the copyrighted work of the Church of Scientology to the Internet. He first transferred the information to a BBS computer, where it was temporarily stored before being copied onto Netcom’s computer and other Usenet computers. Once the information was on Netcom’s computer, it was available to Netcom’s subscribers and Usenet neighbors for downloading for up to eleven days. The plaintiffs informed Netcom about the infringing activity; nonetheless, Netcom refused to deny the subscriber’s access because it was not possible to prescreen the subscriber’s uploads, and kicking the subscriber off the Internet meant kicking off the rest of the BBS operator’s subscribers. Thus, plaintiffs sought a remedy against Netcom for infringement under all three theories –direct, contributory, and vicarious.

The court first analysed whether Netcom directly infringed plaintiff’s copyright. Since Netcom did not violate plaintiff’s exclusive copying, distribution, or display rights, Netcom was held not liable for direct infringement. The court then analysed the third party liability theories of contributory and vicarious infringement. The court held that Netcom would be liable for contributory infringement if plaintiffs proved that Netcom had knowledge of the infringing activity. The court then analyzed whether Netcom was vicariously liable. Here, once again the court found that a genuine issue of material fact supporting Netcom’s right and ability to control the uploader’s acts existed. The court found that Netcom did not receive direct financial benefit from the infringement. Thus, the court found that the Netcom was not liable for direct infringement, could be liable for contributory infringement if plaintiffs proved the knowledge element, and was not liable for vicarious infringement.

To meet the ever- increasing challenges, as posed by the changed circumstances and latest technology, the existing law can be so interpreted that all facets of copyright are adequately covered. This can be achieved by applying the “purposive interpretation” technique, which requires the existing law to be interpreted in such a manner as justice is done in the fact and circumstances of the case. Alternatively, existing laws should be amended as per the requirements of the situation. The existing law can also be supplemented with newer ones, specifically touching and dealing with the contemporary issues and problems.

We would discuss the role and responsibility of Internet Intermediaries of India in the field of Copyright in a separate article. The same would also carry the legislative provisions in this regard as applicable in India.

Intellectual Property, Disability Rights And Fair Use Exceptions

Fair use exemptions are very important part of intellectual property rights (IPRs). These fair use exemptions keep the commercial exploitation of IPRs just and humane. Basically, these exemptions maintain a balance between commercial interests and societal interests so that interest of neither the IPRs holder nor the society is jeoparidised.

In a welcome step, the World Intellectual Property Organisation (WIPO) is conducting a very landmark meeting these days. WIPO’s Standing Committee on Copyright and Related Rights is holding its Twenty-Second Session from June 15, 2011 to June 24, 2011 at Geneva, Switzerland.

The meeting would discuss many crucial issues pertaining to copyright and related rights. For example, issues like protection of audiovisual performances, protection of broadcasting organisations, copyright limitations and exceptions for the visually impaired persons and other persons with print disabilities, exceptions and limitations for the persons with disabilities, educational and research institutions, libraries and archives, etc would be discussed at the meeting. This session would also prepare the background drafts for various international treaties on the abovementioned issues.

This is a landmark session for the WIPO’s Standing Committee on Copyright and Related Rights. The Copyright Laws around the World must be more “receptive and liberal” towards the demands and requirements of differently abled people. By considering suggestions of “fair use exemptions” in favour of differently abled people, WIPO is moving in the right direction and Perry4Law welcomes this initiative of WIPO.

Indian IPRs in general and Indian Copyright Act, 1957 in particular must also be amended suitably so as to create more liberal and extensive fair use exceptions in favour of differently abled people.

Further, provisions must also be incorporated in the IPRs laws of India so that access to libraries, national archives, documentaries, etc is readily available to them. The IPR laws of India must be suitable amended in this regard as soon as possible.

Canada India FTA Would Be Concluded Till 2013

India has been entering into foreign trade agreements (FTA) with numerous countries. Some of them are smooth whereas others like European Union and India FTA are considered to be tough.

Recently EU Trade Commissioner, Karel De Gucht, announced his plans to slash the number of countries, from 176 to 80, that benefit from the generalised system of preferences (GSP) scheme, whereby eligible nations enjoy reduced or zero customs tariffs on imported goods.

The EU India FTA would also involve various intellectual property rights (IPRs) issues as well. Further, EU, India and other countries may also face technological issues of IPRs in future. For instance, technology transfer has been a subject of much debate in the past. While developed countries are reluctant in technology transfer yet developing countries are insisting for the same.

Meanwhile, Canada claims that it wants to conclude the ongoing negotiations for a comprehensive market opening pact with India by 2013. “The free trade pact would provide the building block to shape the future economic relations of both the countries. It will facilitate trade and investment between the countries,” said Canadian Deputy High Commissioner Jim Nickel.

India and Canada formally launched negotiations in November, 2010 for a Comprehensive Economic Partnership Agreement (CEPA) to boost bilateral trade. As per a joint study group report, both countries will benefit from the CEPA. According to the report, India and Canada’s GDP are likely to get benefit in the range of USD 6 billion and USD 15 billion per year from the trade pact. Both the sides expected that bilateral trade between the countries would be tripled to USD 15 billion by 2015 from USD 5 billion currently.

Canada primarily exporting vegetables, fertilisers, machinery and wood pulp, while its main imports from India were organic chemicals, knit and woven apparel, precious stones and metals, electronics and machinery.

India has already operationalised a similar trade pact with South Korea and Singapore and recently concluded a comprehensive free trade agreement with Japan and Malaysia. Both the sides are also negotiating an Audio-Visual Co-production Treaty. Under this, film and music producers of both the countries would get tax benefits besides other incentives. The 22nd session of the WIPO’s standing committee on copyright and related rights is also discussing this issue and many such related issues.

“This would cover all areas of entertainment and media, films and music. We have discussed IPR thing in it. The benefits of this are that our tax incentives, subsidies, waiving of fees that producer could take advantage of,” he said. However, issues of dispute resolution of entertainment and media industry through alternative dispute resolution (ADR) and online dispute resolution (ODR) must also be considered by India.

He also said that huge opportunities are available in sectors like education, energy, food, agriculture, civil nuclear, IT and communication, where both the sides can cooperate. Further, Nickel said growing cooperation in education sector will help in attracting more Indian students to Canada.

On similar fronts, Indian and European Union are already engaged in Euro India ICT Cooperation, Euro India Joint ICT Research and Innovation Programmes, etc. Similar projects and programmes can also be undertaken between Canada and India.

Entertainment And Media Industry Disputes Resolutions in India

Entertainment and media industry disputes are in abundance these days. Popular movies makers are strongly guarding their copyright, neighbouring rights, trademark, etc in India. The popular movie Sholay is a classic example of the same where the name of the movie, songs and even characters have acquired distinctiveness and are protected in India.

Further, digital media and contents are frequently pirated in India. Cases pertaining to these digital contents of entertainment industry are also rising in India. This has posed many novel technical and legal challenges before the entertainment and media industry of India.

A very strange trend in the Asian countries, especially India, regarding entertainment, media and film industry related disputes is that they are essentially resolved through traditional litigation methods. There is hardly any use of alternative dispute resolution (ADR) or online dispute resolution (ODR) methods to resolve such disputes.

Even more bizarre is the fact that such disputes are seldom taken to International level to be decided by international organisations like World Intellectual Property Organisation (WIPO). Although WIPO has a dedicated mechanism to resolve entertainment and film industry related disputes yet Asian countries are mostly “respondents” there.

This shows that Asian countries are not utilising international platforms of organisations like WIPO for getting their disputes resolved. This is a trend that needs to be changed as use of ADR and ODR is certainly “more beneficial” for entertainment, media and film Industry.

However, despite all assurances, entertainment, media and film industry would not be encouraged to approach international platforms in the absence of national level participations. Perry4Law Techno Legal Base (PTLB) has opened a techno legal ODR platform where ADR and ODR is used for resolving all sorts of commercial and civil disputes that can be resolved using ADR and ODR.

With national initiatives becoming popular and frequently used, international platforms may also be approached later on. However, collaboration between national and international ADR and ODR institutions is need of the hour to achieve that objective. Till now this collaboration is missing that is also the main reason why no link between national and international organisations has been established so far.