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Sports & Commercial Arbitration: How both the ends meet

Modern organised sports trace their roots to sporting clubs and associations which believed in setting out their own private rules in order to minimise the role of the State.

Ranojoy Midya

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The idea of fairness given the context must be an essential asset as it doesn’t refer to the sports competition, rather it refers to the commercial status of sports entity. In Club Rangers de Talca v. Fédération Internationale de Football Association (FIFA), the dispute comprised of payment to a football player while the Chilean football club, Club Ranger, was going through insolvency procedures. Once the club had been declared bankrupt in 2009, FIFA Dispute Resolution Chamber ordered Rangers de Talca to pay the amount of $21,000 to one of its former football players. Since the payment wasn’t made, the player initiated disciplinary proceedings against the Rangers in FIFA.

Background

The worldwide practice of resorting to arbitration in terms of dealing with sports-related disputes did not really transpire instantaneously; It rather emanated from the general consensus among the sports sectors’ stakeholders who used to dwell upon the fact that arbitration was preferable over ordinary litigation before State courts. Given the context, sporting communities of recent times are also aligned with the same perception, that the sporting sector embodies several peculiarities that can be better understood by a specialized hearing body than by ordinary judges. Such preferential importance of sports arbitration forms its basis emphasizing the fact that sports sectors have always been favoring a “result-oriented” approach over a “truth-oriented” one as speed and finality are the two fundamental needs of organized sports competition and of related disputes. Within the said ambit, arbitration appears to be the only resolution mechanism that can provide both the sports competition as well as the disputes related to such competition with the proper resolution than that of ordinary litigation.

In order to exemplify the above-mentioned preference of result-oriented approach in sports competition and in disputes related to it, the Court of Arbitration for Sports (CAS) and its awards emphasizing the so-called “field of play” doctrine, stating that sports referees or judges can make their own decisions on the field and these decisions cannot be reviewed by CAS arbitrators unless these decisions are influenced by arbitrariness or bad faith – must be referred.

JUDICIAL DICTUMS

In Mendy v. AIBA (CAS OG 96/06), a referee’s decision to disqualify a boxer for a low blow had been challenged, and the CAS ad-hoc Panel even after accepting the jurisdiction over a game rule, considered it inappropriate to exercise the same. Given the context, the ad hoc Panel was of the opinion that the referee’s decision, being purely technical and pertaining to the rules of the concerned federation, could not be reviewed regarding the application of these rules. The restraint was way more complicated because, from the perspective of the area where the action took place, the ad hoc Panel was not as suitably positioned as the referee in the ring or ring judges who decided the matter. The Panel, at the same time, also enunciated that such restraint must be limited to technical decisions or standards; it doesn’t apply when an official’s field of play decision seems to be tainted by fraud or arbitrariness or corruption.

In Segura v. IAAF (CAS OG 00/13), the CAS arbitrators had shown their incapability to review the decision taken on the playing field by judges, referees, umpires, or other officials if any, who are empowered with applying what is sometimes called “rules of the game” or “field of play” whereas the exception lies on the circumstances when such rules have been applied in bad faith, e.g. as a consequence of corruption. And since the aforementioned did happen at the relevant event, CAS arbitrators were mere spectators with no official role.

In addition, the award ordered in Swedish National Olympic Committee & Swedish Triathlon Federation v. International Triathlon Union (CAS OG 12/10) had been pursuant of the same line of CAS jurisprudence which delineated that, the CAS would only review a field ofplay decision in case the circumstances related to that decision is taken arbitrarily or in bad faith.

or in bad faith. Understanding the basis of field of-play principle within the CAS jurisprudence, the following opinion of the Hon. Michel Beloff QC in Yang Tae Young v. FIG (CAS 2004/A/704) seems to be of utmost importance.

“Finality is in this area allimportant: rough justice may be all that sport can tolerate”.

ARBITRATION & SPORTS: WHERE THE CONNECTION LIES

From the perspective of common socio-cultural background, the profound reasons existed in the said context are self-explanatory to the sports sector’s extensive resort to arbitration. Given the prospect, reference must be made in relation to the transition of how the following six features of both, commercial arbitration and modern competitive sports, within or without the Olympic movement were meant to meet and marry.

Tracing the Origin: Given the context, both modern commercial arbitration and modern organized sports trace their origins to the nineteenth century. It was the time when the Industrial Revolution sparked the development of economic liberty and caused an exponential growth of technology, manufacture, and commerce. This revolutionary era apart from the above developments and growth also brought into realization the following two prospects which, in recent times, were served as the stepping stones for both the commercial arbitration and organized sporting sectors.

The merchants of that time felt the need for a quick and specialized response to disputes which was why the concept of arbitration could come to the surface

The need for increasing the leisure time allowing individuals of the rising middle class to engage in sports, either as performers or as spectators, was felt. As a result, the first sporting clubs and sports associations were established back then.

Contractual Autonomy & Associational Freedom: When it relates to international arbitration and organized sports, both of them share the expression of contractual autonomy and associational freedom. In order to make this terminology more explicit with the given subject matter, it is to be considered that the parties often agree to submit their disputes to arbitration while selecting a private mechanism for dispute resolution that tends to minimize the role of sovereign States. With proper observance, it seems to be no coincidence that arbitration traces many of its roots to the trade association, commercial guilds, and religious associations. Given each of these arrangements, the members of a community most often get into disputes with each other but their ways to resolve such disputes tend to revolve around a mechanism of their own choice and design. Parties given the context prefers such because they desire to minimize the effects of their disputes on their underlying and shared community. At its fundamental context, parties agree to arbitrate at times of disputes because it guarantees them maximum autonomy and control over the resolution of their disputes and at the same time the parties can be assured that the resolution of these disputes would not disrupt or damage their underlying relationship, out of which the disputes arose in the first place.

On a similar token, modern organized sports also trace its roots to sporting clubs and associations which believed in setting out their own private rules in order to minimize the role of the State. Not very coincidentally, the entire sports system also dwells upon the same quote – contractual autonomy and associational freedom – as the participation of athletes and teams in the competition are subjected to their own consent for registering themselves with sports associations and entering the competitions. In the said context, athletes and teams fall under the contractual obligations to comply with the rules of the game and to abide by all decisions imposed on behalf of the sport’s governing bodies, such as those issued by referees on the field or by disciplinary judges off the field. Considering the recent practice of the widespread acceptance by people within the sporting community of rules and decisions issued by such private authorities – it is now well evident that such sports authorities in relation to their legislative and judicial mechanism dwell strongly upon their own choice and design.

Resentments towards Intervention of State Judges: In line with the above-discussed point, both the commercial arbitration community, as well as the sports community, oppose the intervention of State judges into their own disputed matters. Given the context, such resentments towards the intervention of State judges have its relevance in the light of maintaining privacy, expertise, and finality in their dispute settlement process. Further, the State judges are not very enthusiastic about such a dispute resolution mechanism which is why these judges have often been hostile towards the private process of settling disputes within both, the commercial and sports domains.

Transnational System of Justice: Arbitration and Sports have respectively developed set of rules that, while interacting in many respects with States’ legal system, tend to form complex private law system within the ambit of its own transnational levels. Having said that, international arbitration doesn’t only belong to a transnational system of justice but has also been characterized as expressing a transnational autonomous legal system that is often known as “Ordre Juridique Arbitral” or “Arbitral Legal Order”. On the other, organized sports have also been famous for its peculiar transnational branch of law as sports law, which has developed “under its own impetus, without any legislative underpinning to speak of” and is “inherently international in character”. Sports law, given its coherent transnational system of law, has also been characterized as “Ordre Juridique Sportif” or “Sports Legal Order” by State courts, legislators, and many scholars who with the help of some Italian jurists applied the notion of ‘legal pluralism’ to sports many decades ago.

Lex Mercatoria & Lex Sportiva: In relation to the above-discussed point, international arbitration and organized sports have both yielded the application of substantive transnational principles, standards, and rules which are respectively known as “Lex Mercatoria” and “Lex Sportiva”. As per Oxford Public International Law, the term “lex mercatoria” or law merchant is used to designate the concept of a national body of legal rules and principles, which are developed primarily by the international business community itself on the basis of their custom, industry practice, and general principles of law that are applied in commercial arbitrations as well as international in order to govern transactions between private parties and States, in transborder trade, commerce, and finance. Given the context, if there is no express choice of law in the arbitration agreement allowing the parties to act as amiable compositors, arbitrators may apply the source of “lex mercatoria.” In Sapphire International Petroleum Ltd. v. National Iranian Oil Company, the tribunal while considering the conflict of law rules, concluded that Iranian law should be followed to solve the dispute. Nevertheless, the parties’ intention and the fact that the contract had no governing law helped the tribunal reconsider that the use of Iranian law was not contemplated by the parties. As a result, the arbitrators determined those general principles of law accepted by civilized nations which are also known as the principle of “lex marcatoria” should be employed to decide the dispute.

On the other, the term “lex sportiva” has been defined to be constituted by a set of unwritten legal principles of sports law, having been derived from the interaction between the sports rules and general principles of law, developed and consolidated along the years through the arbitral settlement of sports disputes, both at the CAS and the at other dispute settlement institutions specialized in sports. In consideration of the above prospect, the existence and nature of such sets of rules despite being hotly debated, and often doubted, by scholars and practitioners, forms the entire basis through which disputes are regularly adjudicated both in commerce and sports. Having said that, adjudication of this kind doesn’t only depend on State laws but also on the basis of principles, standards, and rules derived from usages, practice, and the never-ending spirit of trade and competition. Apart from that, the idea of fairness given the context must be an essential asset as it doesn’t refer to the sports competition, rather it refers to the commercial status of sports entity. In Club Rangers de Talca v. Fédération Internationale de Football Association (FIFA), the dispute comprised of payment to a football player while the Chilean football club, Club Ranger was going through insolvency procedures. Once the club had been declared bankrupt in 2009, FIFA Dispute Resolution Chamber ordered Rangers de Talca to pay the amount of USD 21,000 to one of its former football players. Since the payment wasn’t made, the Player initiated disciplinary proceedings against the Rangers in FIFA. Consequently, assets of the Rangers were acquired by Piduco S.A.D.P. Knowing about the debt owed by Rangers, Piduco informed FIFA that it had no liability towards the prior debt corresponding to the Club. FIFA pondering upon the fact considered Chilean Insolvency Law on the basis of which employees have a privileged credit and they get paid first. The court, therefore, opined that the player failed to join the creditor’s list of the bankrupt club while he was well aware of such procedure. The court, considering the said aspect, concluded that the player was responsible for the sanction imposed by FIFA DRC in 2009. While analyzing the cases of bankruptcy, the FIFA DRC Panel was of the opinion that the declaration bankruptcy of different legal system disables the bankrupt entity to make further payments until there is a decision of insolvency proceedings. This gave birth to inequities as all clubs play at the same competition but the clubs in bankruptcy stay under the protection of bankruptcy laws, whereas the other clubs must make their payments when they are due. In the opinion of CAS ‘such inequity of treatment and opportunities is contradictory towards the essence of the so-called principles of “lex sportiva”’.

Institutional Framework: Keeping in mind the discussed situation, both arbitration and organized sports have now given rise to important and influential non-governmental organizations which further led to the establishment of an institutional framework within their respective domains. On the one hand, disputes related to commercial contracts are nowadays commonly arbitrated under the administration of several private arbitration institutions such as the International Chambers of Commerce (ICC), The London Court of International Arbitration (LCIA), American Arbitration Association (AAA), etc; On the other hand, international sports institutions likewise International Olympic Committee (IOC), Fédération Internationale de Football Association (FIFA), The Union of European Football Associations (UEFA), etc. over the years have also emerged as a prominent aspect in the context of international relations. Also, in the eyes of the public opinion, it has gained emergence with respect to the fact that they often deal on equal footing with sovereign States in relation to the bids for organizing the major sports events.

CONCLUSIVE ANALYSIS

Given the premise of such interweaving relationship mentioned above between arbitration and modernized sports sectors, a specialized or to some extent simplified model of arbitration known as Sports Arbitration with peculiar features of its own, got introduced in the sports fraternity in order to amicably resolve the dispute arises in the field of sports. Talking about disputes in conformity with the above principle of contractual party autonomy in both commercial arbitration and modern sports, it seems indispensable to construe whether “lex sportiva” being the transnational source of sports law, can become the governing law to sports’ contracts in the same manner that today, “lex mercatoria” being the transnational source of arbitration has become the preferred choice of law in a contract for the parties in disputes.

Lex Sportiva: A governing law for Sports’ Contracts

Given the terminology of “lex sportiva”, it usually speaks of two of its major viewpoints that really define its true perspectives in the world of sports. The first perspective having been emanated from a narrow viewpoint, emphasizes the concept of “lex sportiva” to be made of reiterated decisions in awards issued by CAS, and the second one, based on a broader viewpoint, entitles that the said concept doesn’t only depend on to the CAS decision but also belongs to Sports Governing Body (SGB) regulation. In consideration with the broader perspective mentioned above, “lex sportiva” being the SGB regulation higher the possibilities to become the governing law for sports contracts. The only clarification needed in this regard to make the viewpoint prevalent in the world of sports is to ensure that the contractual party rather than having a clause in the contract expressly stating that “lex sportiva” is the governing law and a specific set of SGB regulations is the contractual choice of law, must, on the other, imply “lex sportiva” as their governing law. Having said that, the aforementioned concept of “lex sportiva” under the realm of its narrow viewpoint seems to be emanated from the CAS decisions that eventually enforce the SGB regulations. The scrutiny in this regard appears to be a bit challenging as “lex sportiva” doesn’t only belong to SGB regulation but also refers to CAS decisions on how to interpret such regulations. However, the SGB regulations being not so self-sufficient in the given aspects, the principle of “lex sportiva” usually complements such regulation with respect to the feasible grey areas in the law.

However, the principle of party autonomy, to a larger extent, favors the party itself in empowering them to select their preferred law whose nature-given certain situations, may not always have to be the domestic law, in order to rule their agreement. Having said that, parties while drafting their arbitration clause selecting CAS as the institution to host their upcoming arbitral disputes arising out of contract, must keep in mind that CAS already has its own models of standard clauses for facilitating the said procedure.

According to such clause, it only specifies that disputes will be ‘resolved definitively in accordance with the Code of sports-related arbitration’.

The said Code, unlike other model clauses available in other arbitral institutions, comprises the CAS rules as well as the regulations of the federation, association, or sports-related body in order to ensure resolution according to the clause of such Code.

Therefore, parties referring to their applicable laws would not be considered enough for CAS to offer them such a possibility in return. Considering all if parties still willing to have “lex sportiva” as their rules of law, should perhaps draft an arbitration clause based on the standard provided by CAS with an inclusion of a text stating that the governing law of the contract will be “lex sportiva”

Opinion

How much funny is really funny? The debate over parody in copyright law

The rights that a work of parody might violate are the distribution rights over the work, right to publicise the work in a positive light, and the moral rights which are associated with the author. Moral rights essentially prohibit modification of the copyrighted work in a manner that injures the honour and reputation of the owner of the work.

Anurag Tiwary and Abhinav Narayan Jha

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The difference between parody and satire has not been accepted or developed by the Indian courts in the context of IP laws. This means that whether a work is a parody or a satire, the defence of fair use can be claimed by the defendants and the work shall also be entitled to claim separate copyright protection as well. 

Parody refers to a work that humorously and critically comments on existing work to expose the flaws of the original work. Parody, as a means of criticism, has been historically used by various people such as stand-up comedians, YouTubers, Bloggers, actors, authors, etc. to communicate a particular message or a point of view to their audience. This means that to create a successful parody, one has to, inevitably, use the original work. Since copyright law gives authors of original work certain exclusive rights, such as the right to reproduction, communication to the public, distribution rights, right to make derivative works, and other such rights associated with the work, parody turns out to be a violation of the rights granted to the copyright owner.

 The rights that a work of parody might therefore violate are the distribution rights over the work, right to publicize the work in a positive light, and the moral rights which are associated with the author. Moral rights essentially prohibit modification of the copyrighted work in a manner that injures the honor and reputation of the owner of the work.

 Parody issues generally come into play with tort law as well as criminal law, especially law on defamation. However, in this article, we’ll try and focus on the major IP issues that hover around the debate regarding parody.

 Copyright Law and its philosophy 

Copyright is a unique kind of property. Just like other Intellectual property, you cannot touch or feel it, but you certainly can protect the ‘creation of the mind’. However, the objective behind copyright law is to “strike a fine balance between monopolistic claims made by authors of original work and adequate protection to the Intellectual property to encourage further creative thought”. Such copyrighted work can therefore be used by third parties to encourage creativity – This is fair use. However, such use has to be reasonable and under certain conditions for specific purposes only. 

The Four Factor Test

 For a valid fair use claim, the defendant will have to satisfy what is commonly known as the “Four Factor Test”. Under the four-factor test, the consideration is: firstly, what was the purpose and character of your use of the copyrighted work. Secondly, the nature of the copyrighted work, which means that if the work is copyrighted then, what is the degree of protection that it deserves. Thirdly, the amount and substantiality of the portion of the work that was taken by you. This means that whether the amount of copying done by you was reasonable in relation to the purpose of copying and lastly, the effect that your use will have on the market of the owner. Will your use impact the potential market of the original work. 

Parody and Satire 

Indian laws treat parody and satire as one and the same. However, the position is different when one looks at the jurisprudence evolved by the courts of foreign Jurisdictions.

 In the United States, the courts have differentiated parody and satire to the extent that it impacts the defense of Fair Use under their copyright law. In Campbell v. Acuff-Rose Music, Inc (1994), the court differentiated between the two and held that “Parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim’s imagination, whereas satire can stand on its own feet and so requires justification for the very act of borrowing.” Parody, according to the court, meant, “Second work by a different author that imitates the characteristic style of the first author … to ridicule or criticize the copied work.” However, satire meant a work in which “prevalent follies are assailed with ridicule or attacked with irony, derision or wit.” The Supreme Court of the United States, in this case, made it clear that while parody was entitled to the defense of fair use, satire was not.

 On the other hand, in May this year, the Delhi High Court had an interesting case before it. Netflix aired a web series on its platform named “Hasmukh” which is a dark comedy about a small-town boy who arrives at Mumbai to pursue his career in stand-up comedy. Something weird about Hasmukh, the protagonist, is that he can only successfully perform his act if he commits murders before his performances and makes jokes about his victims. During one of the episodes, Hasmukh has been shown to have had an upsetting experience with a lawyer. The lawyer is someone dishonest and greedy. During the same episode, the protagonist allegedly makes derogatory remarks against the entire legal fraternity. So, a suit was filed before the Delhi High Court seeking a stay against further airing the web series. The court in Ashutosh Dubey v. Netflix (2020) sat to decide whether the above situation amounted to freedom of speech and expression under Article 19(1) (a) of the Constitution of India. Although the case was decided based on the above contention, the court made certain remarks on what a satire is. The court said, “Satire is a work of art. It is a literary work that ridicules its subjects through the use of techniques like exaggeration. It is a witty, ironic, and often exaggerated portrayal of a subject.”

 Another instance when the court considered the issue of satire was in the case of Indibily Creative Pvt. Ltd. vs. Govt. of West Bengal (2019). It was the Supreme Court that held that “A Satire is a literary genre where issues are held up to scorn by means of ridicule or irony. It is one of the most effective art forms.” The difference between Parody and satire has not been accepted or developed by the Indian courts in the context of IP Laws. This means that whether a work is a parody or a satire, the defense of fair use can be claimed by the defendants and the work shall also be entitled to claim separate copyright protection as well. This is because the courts in India have considered both these forms of expression as a work of art and have characterized them under artistic expression.

 Parody and Fair Use 

Parody is included under a category of works allowed under Section 52(1)(a)(ii) of the Copyright Act, 1957. This provision provides for ‘criticism or review, whether of that work or any other work.’ Parodies usually are essentially a criticism of original work and are therefore included in the list of works allowed in the above provision. However, it isn’t as simple as it sounds. The real problem starts when you have to prove that your work was a parody and not an infringement on the rights of the original copyright holder. 

To prove that your work is covered under parody, you have to satisfy two conditions which will essentially conclude as to whether it is covered under fair use or not. They are, Firstly, you must not have intended to compete with the copyright holder. This is also called the Market Substitution Test and Secondly, you must not have made ‘improper’ use of the original work. These conditions were laid down in the case of Blackwood and Sons Ltd. & Ors. v. A.N. Parasuraman & Ors. (1959)

 So, if you can prove that your work has not impacted the potential market of the original work and that the parody and the original work cater to two completely different sets of audiences, you would have passed the market substitution test. This is tricky because applying this rule strictly is impossible for the simple reason that one is not quite sure if the categorization of the audience can be done in the manner that this rule presupposes. If the court looks into the commercial gains made by the parody to see if the parodist has competed with the original author, then that too wouldn’t be an effective mechanism. Kris Ericson writes, that, even if the parody has made commercial gains by criticizing the original work it doesn’t mean that it has made inroads into its potential market. Infact, he goes on to mention that, it has indirectly helped the original copyright owner by publicizing the original work and for lesser-known works, it has served to make it more famous/popular. 

The Transformative Work Test

 To meet the difficulties that could arise while analyzing the first condition, the courts have evolved the “Transformative Work” Test. This test was also used in the Campbell case where the US Supreme Court held that the relevant question to decide in such circumstances is to see “to what extent the new work is transformative, i.e., to what extent the new work alters the original with new expression, meaning or message.” This test has therefore substantially downplayed the commercial use argument and if the parodist can show that his work is transformative, he would be entitled to fair use defense. However, what qualifies as a “transformation” under this test has to be decided by the court on a case-to-case basis.

 In Leibovitz v. Paramount Pictures Corporation (1998), the US Court of Appeals for the Second Circuit was faced with a dilemma. Leibovitz is a well-known photographer. Among her most famous works is the photograph of the actress Demi Moore. Moore was pregnant when the photo had been shot by Leibovitz. She was depicted nude with a serious facial expression. The photo was shot keeping in mind various aspects such as skin tone, body positioning, and lightning, among other things. The photograph gained popularity in very little time. Paramount pictures, sometime later, published a photograph of the actor Leslie Nielsen where the company had used the same concept behind Leibovitz’s photo. The company used the photo of a naked pregnant woman, which was shot using similar lightning, body positioning, etc. and superimposed the ‘smirking’ face of Nielsen in the place of the woman. Now, the question that the court had to decide upon was, whether this amounted to a transformative work at all. The court held that Paramount’s use was transformative because it had imitated the original work and had brought in a ‘comic effect or ridicule’ which was an addition to the original work. The court also held that Nielsen’s photo with a smirking face had a contrasting dissimilarity with the serious expression of Moore which may be perceived as commenting on the ‘pretentiousness’ of the original.

 In R.G. Anand v. M/s Deluxe Films (1978), the Supreme Court in India has held that “Where the theme is the same but is presented and treated differently so that the subsequent work becomes a completely new work, no question of violation of copyright arises.”

 However, a work does not become a parody simply because there is humor inside it. If it is found that the parodist has tried to use a famous work to gain more commercial benefit by simply incorporating humor in the work, it wouldn’t be considered a parody. For instance, during the fag end of 2015, a US court was hearing an exciting case. The defendant, who was an apparel company, had used the iconic Superman logo on its T-shirt. The T-Shirts featured the word “Dad” in a superman-styled logo. They claimed that SuperDad T-Shirts by the defendant were an obvious parody of the Superman logo and therefore there is no likelihood of confusion that could be caused to the consumers. They infact claimed that the word ‘Dad’ was used to point out Superman’s ‘undue self-importance’. The court was sitting to decide on the motion to dismiss the complaint. The judge disagreed with the arguments of the defendant and held that although the defendant’s use of the word Dad is humorous, it is only to promote the t-shirts using the logo of the plaintiff, and therefore it is not a parody. 

What does the SupermanSuperDad fiasco show? It shows two things in particular. It shows how a defense of parody will only succeed if the work is not likely to confuse the consumers as to the source of the work. Secondly, it shows how parody has to be more than being just funny especially when the work is purely commercial in nature. It has to make some commentary on another’s work. The commentary must be meaningful and must not be simply to utilize someone else’s work to increase your sales. 

Parody and Moral Rights

 Moral Rights are inalienable rights granted to an author of a copyrighted work. They exist independently of Copyright. The author of an original copyrighted work, even after agreeing to alienate his exclusive economic rights, retains moral rights in his works which can be enforced when the need be. They give the right to the author to have the work attributed to him which is also known as the right to paternity. 

Moral Rights were included in Article 6bis of the Berne Convention way back in 1928. Section 57 of the Copyrights Act, 1957 grants protection against any act of distortion, mutilation, modification, or any other untoward act done to an author’s original work in which copyright exists. Acts which prejudice the honor or reputation of the creator of the work is read as a violation of the Right to Integrity, which also forms a part of Section 57.

 It is to be understood that parody directly infringes upon the moral rights of the author of an original work. This is because it is based on ridiculing and mocking the copyrighted work. This is where the second test to claim parody as fair use comes in. We do know that to claim fair use defense in parody, the parodist will have to prove that he did not use the original work in an ‘improper’ manner. But the test becomes difficult to theorize because of a lack of a clear definition of the word ‘improper’ and as to what it entails.

 Here, there are issues relating to freedom of speech and expression (argued by the parodist) as well as those related to defamation law and claim over one’s right to dignity (argued by the author of a copyrighted work). It is to be understood that freedom of speech and expression is not an unbridled right. It is infact a right with reasonable restrictions. This means that a parodist is not allowed to ridicule or attack the work such that it can be imputed to the author of the work. 

How can this distinction be made is a question of fact which the courts have to decide on a case-to-case basis. Usually, the courts apply what is called “The line of Creativity” principle. This principle draws a line between the parodist’s creative application of ideas and expressions to criticize the original work, and, the insult or humiliation intended towards the author of the original work. Such an inquiry is for the courts to do. But while doing such an inquiry the courts need to draw a distinction between innocent humor and defamation intended against the moral rights of an author.

 Notably, the Australian Supreme Court laid down the ‘bane and antidote Test’ in the case of Charleston & Smith vs. Newsgroup Newspaper Ltd (1995). The test laid down a rule that if any defamatory text or picture is accompanied by a disclaimer prescribing that the work has been used just for humor purposes then it must be taken only for humor purposes and nothing more or nothing else. This was a big development.

 The growth of new media technologies has increased the number of actors, standup comedians, bloggers, and other stakeholders in copyright law. The use of original copyrighted works, without the permission of the author of the work, has almost become a norm and a social and cultural behavior. This is all being done in the name of a joke or a parody. Majority of these contents violate the moral rights of authors of original works and are offensive. The rest use parody as a fair use defense for works that are purely aimed at commercial gain. Such infringements need to be regulated in an age of digital India to grant incentives for creators to create more works of artistic expression. The different tests adopted by the courts have to be applied equitably. In the longer run, this will further the goal of Intellectual Property to balance the rights of the Authors as well as those forming part of the citizenry. 

Anurag is a student of National Law University, Visakhapatnam and can be contacted at anuragtiwary66@gmail.com Abhinav is a student of law from Amity University, Noida and can be contacted at narayanabhinav14@gmail.com 

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Legally Speaking

The delay disaster

The justice delivery system continues to lumber on for now, but the question really is whether it is delivering justice or whether the justice delivery system is maintaining a Nelson’s eye to all serious and severe problems arising from mounting arrears.

Amir Singh Pasrich

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Indian Judiciary

A little known fact is that during the pandemic there has been an increase in the number of cases pending in Indian courts by roughly 20,000 cases per day. A Delhi High Court Judge is reported to have calculated in 2009 that if we are to clear the arrears in the Delhi High Court, it might take up to 464 years. The Law Commission noted this in its 230th report and opined that the position “may not be that gloomy” but it was “still alarming”. That was their view on the 5th of August 2009. Eleven years later, the Chairman of the Law Commission has naturally moved on, the recipient of the report who was the then law minister has also demitted his office and several Chief Justices have been sworn in and then retired in the Supreme Court of India and in each of the High Courts. The justice delivery system continuesto lumber on…for now, but the question really is whether it is delivering justice or whether the justice delivery system is maintaining a Nelson’s eye to all serious and severe problems arising from mounting arrears. Are we not ignoring the tremendous injustices perpetuated upon every innocent person who remains under trial and is yet incarcerated while s/he is accused of an offence, but has not been adjudicated to be guilty? The favourite maxim of the courts that you are innocent until proven guilty is actually a chimera insofar as it concerns persons who don’t get bail once they are accused of a serious crime. It is even worse if such innocent folks happen to be poor, picked-up by an overzealous police officer who finds the right ingredients of suspicious activity, perceived notoriety and prior criminal record even if such prior criminal record is patently unproven. 

As a reader I would not blame you if you thought: “Surely not – Mr. Author – surely this system is better than that you would assume it to be in your pessimistic article? Surely, we have a system in place to put these people behind bars when they have actually done something wrong?” But the answer sadly is that 69% of India’s jails are occupied with undertrials who have not been convicted. That is the figure as of today. What is worse is that although we started understanding the seriousness of the problem somewhere in the late 90s when the Supreme Court issued its first set of serious directions in the case of Anil Rai vs. State of Bihar in the year 2001, we had no idea how much this behemoth would grow. Far from improving the situation, the number of pending cases has grown from 3.14 crore casesin the year 2009 to 3.46 crore cases today. Shockingly a report that showed a pendency of 3.34 crore cases in late July 2020 when seen in the context of pendency as on Friday, the 25thof September 2020 reflects an increase of 1.2 million cases in just 60 days. If we aren’t bothered about human rights, the effect of “pendency” on prisoners, or the consequences of sending other innocent people to jail for long periods of time (after all – they must have done something wrong!), perhaps our people may worry about money. After all, money determines everything and affects our day-to-day business. India strives to demonstrate its economic power through the new and renewed Ease of Doing Business (EoDB). Chambers of Commerce and business houses alike seek to “unclog the Indian legal system” so as to improve contract enforcement and have faster dispute resolution mechanisms. With courts still stuck in the pendency paralysis, it is clear that our money and the cost of pursuing an ordinary business will be compromised unless we begin with strictly enforced new measures for contract enforcement. Our companies will need to be “saved” from the clutches of civil court pendency which is robbing India of a major element of its business credibility. Mr. Fali Nariman, one of India’s most noted jurists, famously said that in some countries they have Order and in India we have Law. Should we not now quickly marry the two and deliver law and order so as to change international perceptions about how our courts involve themselves with dispute resolution in a purposive and result-oriented approach that might eventually be better than what is on offer elsewhere? What we really need is serious reform and steps for that must be identified soon. 

We are debating this issue in an online platform of the PHD Chamber of Commerce and Industry on this 26th of September, please feel free to find the link at www.phdcci.in and listen in. After this first initiative, another part of this article will emerge with suggested steps for reform based on the lessons of the past. 

Amir Singh Pasrich is Managing Partner of I.L.A. Pasrich & Company, Advocates. He is co-chair of the India Working Group of the International Bar Association (IBA) and is an elected member of the IBA’s LPD Council, he is also Chairman of the Law & Justice Committee of the PHD Chamber of Commerce.

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Opinion

Is it the time to legalise the use of cannabis in India?

Priya Sahgal

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The Sushant Singh Rajput case is no longer about the actor’s death, whether it was a suicide or a homicide. Or if it was suicide, was it an abetted one? It is no longer about the Outsider Vs the Bollywood Insiders either. No, now it has become a narcotics case, probing into the use of drugs in Bollywood. And what has prime accused Rhea Chakraborty been charged with? The possession of some 59 gm of weed? This is less than the 1 kg that is listed as a “small quantity” offence under the Narcotic Drugs and Psychotropic Substances Act (1985). That this is an act that we were coerced to sign under US pressure is another matter, as is the fact that many states in the US have now reneged on this ban both for medicinal and recreational use. 

But I don’t want to add to the hashtag #BollywoodDrugMafia and play into the agenda of our narrative setters. Rather the focus of this column is on another side story: Is it now the time to legalise the use of cannabis in India? For if the narcotics department starts arresting every consumer of marijuana then there would be a lot of sadhus, swamis, IIT and college students and Holi revellers behind bars. Those who argue in favour of lifting the ban, point to the fact that the buzz from marijuana should not be seen on par with that from coke and heroin; neither is its impact as harmful as that from consuming alcohol or tobacco. But the latter’s lobby is much stronger than the pro-marijuana users and hence one is allowed while the other is banned. Interestingly, former BJD MP Tathagata Satpathy makes an interesting case when he calls the ban an “elitist” move. As he points out, it’s ok to hold an expensive glass of wine in your hand but if you roll a joint then people will call you charsi. Speaking on the NewsX show, ‘Roundtable’, he pointed out that he was not in favour of legalising marijuana but wanted it decriminalised. He has a point for this will legalise something that is already happening all over the country. According to a study done by the Vidhi Centre for Legal Policy, the government gets to gain as much as Rs 600 crore if it legalises the use of cannabis. The benefits are there for the farmer who gets a cash crop as well. Hence by making it legal the government can impose a tax on it, ensure quality control, and also educate the public about its ill effects as it does with cigarettes and alcohol. As Neha Singhal, Senior Resident Fellow at Vidhi, points out, “The use of cannabis has both religious and cultural significance. Neither is cannabis addictive.” In fact, while on the Roundtable, Dr Sanjay Chugh, senior consultant psychiatrist, pointed out that cannabis is safer than either alcohol or nicotine and human beings sometimes do need a stimulant to relax. There is a 477-page report by the Indian Hemp Drug Commission (1984) that claims that the moderate use of cannabis produces no ill effects. However, despite this the Single Convention on Narcotic Drugs (1961) clubbed Cannabis with other Schedule 1 drugs like opium and cocaine and in 1985 the NDPS Act made it illegal.

 Incidentally, bhang is not considered illegal. Those who argue in favour of the ban talk about the impact on mental health (though there are as many counter arguments to the contrary). There are also concerns about the fact that this habit could be a stepping stone for other drugs, especially amongst school and college children. 

But in the end, what India needs to do is to relook at some of our archaic laws including the NDPS Act. As Satpathy says, we have inherited most of our laws from invaders — from the Mughals to the British. It is now time to fashion laws that are tailor-made to our lifestyles and needs and not meant to suppress us to suit the whims of outsiders. 

This, I would say, would be the most positive take away from the entire Rhea Chakraborty-Bollywood drug drama.

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Opinion

Farmers need hand holding as they look at opportunities of farm bills

The implementation of the farm bills must ensure that farmers are protected, and both the farmers and the corporates get a level-playing field. A large population of farmers is uneducated and may require legal counselling. They get a feeling that they have been asked to take a plunge when some of them can’t even swim. The corporates are duty-bound to ensure that they win farmer’s trust by fair trade practices. This would lead to a win-win situation for all three farmers, corporates and consumers.

Atir Khan

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The government has passed the three historic farm bills with an intention of giving farmers their long-pending due. It is meant to change the narrative from sahukar ke changul mein ek garib kissan tha to ab kissan khushhal hoga. In the prevailing Covid-19 scenario, this narrative might take some time to change.

 In order to ensure the success of the game-changing bills, the government will have to become the fulcrum between the farmers and the private players. There has been enough political debate on the intention of bringing about The Farmers Produce Trade and Commerce (Promotion and Facilitation) Bill, The Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Bill, and The Essential Commodities (Amendment Bill). 

Prime Minister Narendra Modi has himself several times clarified that the bills are well meaning and intended to bring about positive changes in the life of a farmer. He has also assured that MSP would remain and so would mandis (markets). He has slammed the opposition parties saying that they are shooting from the shoulders of farmers and trying to misguide them regarding the intention of bringing about the bills. 

 However, various political parties have questioned the intention of the government behind these bills, which, they allege, will be favoring the corporates rather than the farmers. Congress, BJD, TMC, AAP and even an NDA constituent SAD have been critical of the government for making this move. The SAD’s senior leader Harsimrat Kaur Badal resigned after her party decided to take a tough stand against the bills. 

Nobody can, however, deny a long-felt need for reforms aimed at improving the condition of Indian farmers. Previous governments have set up committees such as the Shanta Kumar Commission and the Swaminathan Commission as a need was felt to improve the condition of Indian farmers and means of their livelihood. The idea behind the government bills is to open up the farm markets in the hope that the move would make the system more efficient and allow for better price realisation, especially the farmers. The central concern is to make farming a more remunerative enterprise. But there have been widespread protests against the bills — particularly in Haryana and Punjab. 

Experts with leftist leanings have been critical of the government for not fulfilling the assurances it made after it came into power. They say when the government came into power in 2014 it had assured that it would implement recommendations of the Swaminathan Commission in twelve months.

 In 2015, the government had said it cannot implement its recommendations as they are not feasible because it would lead to distortion of market prices. In 2016, the government said it was irrelevant to implement the recommendations and in 2017 the government said the Madhya Pradesh model was better than the recommendations of the commission. They have also stated that in Bihar the mandi system has been done away with, but the system has not really helped farmers much. Even contract farming has been tried in several places but it has not shown great results. With the changes in Essential Commodities Act, the government’s intervention in prices of potatoes and onion would also stop. However, if one were to take a balanced approach one would realise that the government has dared to come up with its landmark bills, being fully aware that the move would invite a strong criticism. These bills are in sync with the Modi government’s trademark style of taking bold decisions to bring about the transformation. 

Interestingly, even during Covid agriculture has been one sector which has done exceptionally well. There has been bumper production, which shows that agriculture is one of the most promising sectors which can deliver even during most testing times. Government felt there is a need to connect farmers to private players for a win-win situation but by giving them a level playing field. 

The intention is good. But it takes time and a lot of effort for every good thing to fructify. While the government has taken the bold move, farmers are not sure whether it will play out in their favour. One of the reasons being that the farmers who, for decades, have relied on the government for support suddenly find themselves left to their own destiny. The fears of farmers are not unfounded as steps like contract farming and doing away with mandis have been tried at places.

 The main sticking point being the uncertainty over continuity of mandis and assurance of MSP. There have been several assurances at the highest level in the government that MSP would remain and farmers need not worry. But there is a growing sense of insecurity among farmers due to absence of any written assurance of MSP in the new legislation. They are apprehensive that exposure to the corporates and private players would lead to their exploitation. 

Basically, this sense is created due largely to political opposition and vested interests of some politicians. But it is true that farmers have a feeling that they have been made to take a plunge in the water to swim on their own even when some of them are not capable. This is not to say that they are averse to changes as there are examples of how well they worked closely with food supply aggregators and ensured their crops were sold and reached the end user.

 It’s just that under the new regime there is a fear that the mandis would be bypassed and prices would be decided by private players and corporates. And that there is a danger that cartels would come into existence and they would dictate the prices to the farmers. Also, there is no certainty about the necessity of a contract between the farmers and corporates. There is no set format or preconditions laid down for such contracts. In the absence of any guidelines, the possibility of innocent farmers being exposed to exploitation cannot be ruled out. 

The government has come up with a mechanism for redressal for farmer’s issues in case of dispute with corporates or private players. The farmers could approach their local area sub divisional magistrate with their issues and he or she would form a committee which would have equal representation from the both sides. In case their issues are not addressed, they could also approach the district magistrate or appeal to the higher authorities.

 While the government has worked out a mechanism for grievance redressal it should also think on the lines of providing farmers pre contract or pre agreement legal counselling. This would eradicate communication gap, if at all any, and lack of understanding on the part of both the parties.

 In due course of time, the bills would lead to business between the farmers and the corporates. While this happens, various state governments could also think about encouraging corporates and private players for setting up manufacturing units near the place where agricultural produce is grown. For example, setting up potato chips factories in areas where potatoes are grown, mango products in areas where mangoes are grown and so on so forth. This would require state governments to come up with irresistible offers to corporates. However, if such a mechanism is worked out it could also generate employment in the manufacturing industry as well. 

India’s arable area as a percentage of national landmarks is among the highest in the world at about 43 per cent. However, the problem is with the agricultural output, which is among the lowest in the world in comparison to the potential resources the country has. Since India’s Independence, very little capital investment has gone into this sector on an institutional level. It is expected that the new legislations would change the scenario and would lead to more investment in the sector.

 The agricultural GDP share in countries like Netherlands, France, Ukraine and Australia is between 18 and 19 per cent. In India, contribution of agriculture to the GVA has decreased from 15 per cent in 2015-16 to 14.4 per cent in 2018-19. GDP from agriculture in India averaged Rs 4231.13 billion from 2011 until 2020, reaching an all-time high of Rs 6098.83 billion in the fourth quarter of 2019 and a record low of Rs 2690.74 billion in the third quarter of 2011. 

GDP from agriculture in India decreased to Rs 5306.26 billion in the first quarter of 2020 from Rs 6098.83 billion in the fourth quarter of 2019. It is estimated that India’s agriculture sector accounts only for around 14 per cent of the country’s economy but for 42 per cent of total employment. 

What India needs today is agricultural industrialisation. Covid-19 has shown how a majority of Indian population depends on rural India for sustenance. Due to reverse migration, the work force has reached back to rural areas.  The work force migrated to cities as agricultural income could not sustain them. In the present scenario there is an opportunity to work on a new strategy and gainfully employ displaced people in the agriculture and food processing sector. The farm bills could be a force multiplier in this direction if implemented in a proper manner. Unfortunately, the agricultural footprint in India has been largely political. Indian farmers are always projected as poor as against a prosperous community in foreign countries. The Indian political system has seen farmers as vote-banks with emphasis on subsidies.

 There is a need to understand that agriculture is not only sustainable machinery, it may be a very profitable business venture if done through proper investment, knowledge and facilities. 

There is a need to link agriculture with latest technological development, skilling of farmers with scientific method, improving micro financing and cooperative structure with an aim and scale of industry. There is also a need for improving processing, supply chains and export facilities.

Prime Minister Modi has taken some very positive initiatives in this direction, especially the focus on soil testing and creating a conducive environment for food processing to take off in a big way. Now the government has taken a bold decision by bringing about the three farm bills aimed at improving the condition of farmers. The bills have to be implemented in a manner which wins the trust of Indian farmers and, at the same time, it gives a level playing field to corporates, who would invest and create more employment opportunities.

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Aatmanirbhar Bharat: Roadmap for making universities self-reliant

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Indian universities have taken up the challenge of finding innovative solutions to the problems raised by Covid-19.

Prime Minister Narendra Modi-led government started the Aatmanirbhar Bharat initiative with a motive to address the basic issue of abysmally low market demand and economic slowdown induced by the Covid-19 pandemic. The main thrust of the programme is towards making India self-reliant and resilient in both normal and crisis times. During the pandemic, the universities had a single option of changing the study module to the digital one. The educational institutes started focusing on thinking out of the box to meet the challenges of the digital revolution while embracing entrepreneurship, critical and problem-solving skills as part of the academic experience, as well as creating cultures where innovative thinking is inspired and nurtured.

 The challenge didn’t end here. The universities are also planning adequate steps to prepare all students for a rapidly changing job market and to make them industry ready and self-reliant. They must ensure that talent from the diverse, global community has access to opportunities in the new era of digitisation. Since Aatmanirbhar Bharat has become a mantra for everyone, universities are urging students to showcase their talent by developing more Indian apps in different categories under the “Aatmanirbhar Bharat Innovate Challenge”. Apart from this, the following factors are also playing a crucial role in making Indian universities selfreliant: 

New dimension to entrepreneurship model

 In the pre-Covid era, academic institutions put attention on training their students in skills that were required in larger companies. But with Aatmanirbhar Bharat, the initiative has brought the country’s focus back on MSME — one of the key driving forces towards self-sufficiency. MSME constitutes 80 percent of the workforce in the Indian industry. Ignoring this sector would be a lost opportunity. In developing nations across the world, MSMEs have engaged with academia by investing in research and innovation — a relationship that can benefit both institutions and industry. Students need to be trained accordingly for the jobs that will be in demand in future. Innovation as the major objective 

Indian universities have taken up the challenge of finding innovative solutions to the problems raised by Covid-19. Though it has brought insurmountable suffering to humankind, it has also propelled many to push their creative boundaries for the betterment of the society. With the help of advanced artificial intelligence and Internet of Things (IOT), many universities are working hard to transform a village into a smart city so that the residents of the village can also avail all the facilities that will enable them to grow.

Making employment sustainable

 When the world is going through such a phase, it is inevitable for the industry to rely on academia to access and train the kind of talent that is required to thrive in the future workplace and to ensure life-long learning. It has been estimated that more than 12 million Indians get job-ready every year but the sad part is that not everyone is well acquainted with the needs of the company. Our educational institutes should follow the “Experiential University” model, which might be one of the answers to the challenge of a highly developed education system. Providing quality education and training 

Through the provision of quality education and training to its students, we can make the students self-reliant. It is important that universities pay much premium on this because the more educated and highly skilled people are, the higher are the chances of a nation’s development. It is for this reason that many developed countries that are self-reliant don’t take education for granted. Such countries have a huge chunk of their population having various degrees of quality education and training. 

Encouraging students to take responsibilities 

Responsible students are aware of their roles, duties, tasks and schedules. This enables them to plan and prepare for their days. They are committed to tasks from start to finish. They will be taking corrective actions on their own. They will also persist in doing tasks even if they are tedious or boring and will always be ready to face the consequences of their actions. Being responsible empowers students to feel confident and in control of their lives. 

National Education Policy’s crucial role 

The policy lays special emphasis on the National Research Foundation because innovation is important for the country’s progress. Only when we strengthen innovation and research, then our country will remain competitive and move ahead. The more innovation is strengthened in the country, the more progress it will make in a competitive world. This will also enable citizens to become global citizens and at the same time making them know and understand their roots. The New Education Policy also focuses on research and development to make India a key research and development destination for the world. 

 The author is the Vice Chancellor, JK Lakshmipat University, Jaipur. The views expressed are personal

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Opinion

The evergreen hero and India’s first superstar

Pankaj Vohra

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Without a doubt, Dev Anand was the first mega star of Indian cinema, who over a period of time, influenced the lifestyles of multiple generations. Although a part of the troika comprising him, Dilip Kumar and Raj Kapoor, he had a fan following that was mind boggling. If Raj Kapoor was considered as the greatest showman and Dilip Kumar the tragedy king, Dev Anand was the quintessential romantic hero. Girls would swoon over him and boys copied his hair style or tried to dress like him. Each and every movie starring Dev Anand would be eagerly awaited and the black market of tickets for the first day, first show was higher than any other contemporary star of his time. Even when Rajesh Khanna and later Amitabh Bachchan attained a superstar status, it was Dev Anand alone who survived their phenomenal rise, and continued to have his box office appeal. 

Having interviewed him on several occasions, one could safely conclude that he was a power bank of energy and enthusiasm. He would always be on the lookout for new scripts and new talent and was obsessed with making films. Many of his critics during his last years, wanted him to give up acting, but in his inimitable manner, Dev Saheb, as he was addressed later, would shoot back and ask, what was their problem when he was spending his own money and time in doing what he liked the most. Together with his brothers — Chetan and Vijay — he had set up the Navketan films, under whose banner, he acted in multiple blockbusters. His movies were trend setters and many were even ahead of their times. Guide, for instance, is regarded as probably his most memorable movie, so far as his performance goes, but his appeal always remained undiminished. Tere Mere Sapne and Hare Rama, Hare Krishna were exceptional, as were Taxi Driver, CID, Hum Dono and Jewel Thief. He enthralled his fans by his performances in Johnny Mera Naam and Gambler and innumerable films before that. When Prakash Mehra decided to make Zanjeer, he made Salim-Javed write the script keeping Dev Anand in mind. However, the actor turned down the role and Amitabh stepped in to make history. The principal reason why Dev Saheb outlived his generation of actors in the silver screen was that he kept abreast with the times and looked after his appearance. He told me once that since childhood, he was administered Chyawanprash by his mother and he continued to have it.

 Dev Anand had a mind of his own and politically was never afraid of taking a stand. He was one of the very few stars who came out against Emergency in 1977. He was romantically linked to many actresses of his time, Suraiya and Madhubala in the early years and Zeenat Aman in the later phase. However, he did not allow that to affect his work. In an interview, he told me that he would tell me about his heroines one day, but that opportunity never arose. A product of Government College, Lahore, where he was a batchmate of my father, Dev Anand was specially invited by Atal Bihari Vajpayee when he as the Prime Minister undertook his historic Bus Yatra to Lahore. He became a hit, across the border as well. For him, there was no singer who could sing ghazals better than Mohammad Rafi and lighter songs better than Kishore Kumar, both of whom were his favourite playback voices. Most of the films produced by him had music by Sachin Dev Burman, in whose abilities, he had immense faith. However, many others also composed hit songs for him in his various other starrers. When he fell ill, he went to London for treatment since he did not wish any of his fans to see him in the condition he was in. It is not surprising that he breathed his last in the British capital where his last rites were also performed. While remembering him on his 97th birth anniversary on Saturday, we must never forget that Dev Anand was the man for all seasons of the Indian cinema. A phenomenon who left an indelible imprint on the celluloid. 

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