Thursday, 15 December 2016

MCA NOTIFIES EFFECTIVE DATES FOR CORPORATE RESTRUCTURING, WINDING-UP PROVISIONS AND SEVERAL OTHER SECTIONS OF THE COMPANIES ACT, 2013

                                 Email: info@nclt.in
                         Mobile: +91 8447778422


Earlier vide notification no. S.O. 3594(E) dated November 30, 2016 the Ministry of Corporate Affairs (“MCA”) notified December 1, 2016 as the effective date from which the provisions of the Corporate Insolvency Resolution Process under the Bankruptcy and Insolvency Code, 2016 (“IBCode, 2016”) shall come into effect, thus paving way for faster mechanism for corporate insolvency resolution and liquidation of corporate persons with adjudicating authority as National Company Law Tribunal (“Tribunal”).

Moving ahead with effecting the major provisions of corporate restructuring, winding up and other provisions of the Companies Act, 2013, the MCA vide notifications dated December 07, 2016 has notified several sections/ provisions of the Companies Act, 2013; issued directions for transfer of proceedings under the Companies Act, 1956 from the Hon’ble High Courts to respective Tribunals having territorial jurisdictions and issued Companies removal of difficulties order in relation to the these:

December 15, 2016 to be the effective date for:
A brief summary of the Companies (Transfer of Pending Proceedings) Rules, 2016 are provided below:
  S.No.ParticularsExplanationEffective DateRemarks
  1.Transfer of pending proceedings relating to cases other than Winding UpAll proceedings under the Companies Act, 1956 including proceedings relating to arbitration, compromise, arrangements and reconstruction, shall stand transferred to the Benches of the National Company Law Tribunal (“the Tribunal”) exercising respective territorial jurisdiction. 15th December, 2016
Proceedings which are reserved for order
Shall not be transferred to the Tribunal.
Proceedings which are not reserved for order
Shall be transferred to the Tribunal.
2.Pending proceeding relating to Voluntary Winding up:All applications and petitions relating to voluntary winding up of companies under Companies Act, 1956 pending before the High Court on the date of commencement of this rule, shall continue with and dealt with by:1st April, 2017Voluntary Liquidation of Corporate Persons (including company) under u/s 59 of the IB Code, 2016 not yet made effective.
No clarity provided how would freshvoluntary winding up matters can be filed till April 1, 2017
High CourtTill 1st April, 2017
the TribunalOn or after 2nd  April, 2017
3.Transfer of pending proceedings of Winding up on the ground of inability to pay debtsWhere the petition has not been served on to the Respondent under Rule 26 of the Companies (Court) Rules, 1959
 Petitions relating to winding up under clause (e) of section 433 of the Companies Act, 1956   pending before a High Court shall stand transferred to the Benches of the Tribunalexercising respective territorial jurisdiction and such petitions shall be treated as applications under sections 7, 8 or 9 of IBCode, 2016 .
 Further, petitioner shall also submit information (other than forming part of the records transferred), required for admission of the petition under sections 7, 8 or 9 of the IB Code, 2016 including details of the proposed insolvency professional to the Tribunal within sixty days from date of this notification, failing which the petition shall abate.

Where Board for Industrial and Financial Reconstruction (“BIFR”)has forwarded an opinion for Winding Up of company , under Section 20 of the Sick Industrial Companies (Special Provisions) Act, 1985 to High Court
15th December, 2016Pursuant to the transfer of proceedings if the  Petitioner does not furnish additional details regarding proposed Insolvency Professional or otherwise required within 60 days from date of this notification the petition shall stand abated.
Where no appeal is pendingShall be dealt by High Court and will not be transferred to the Tribunal.
4.Transfer of pending proceedings of Winding up matters on the grounds other than inability to pay debtsWhere the petition has not been served on to the Respondent under Rule 26 of the Companies (Court) Rules, 1959
 All petitions filed under clauses (a) and (f) of section 433 of the Companies Act, 1956 pending before a High Court, shall be transferred to the Bench of the Tribunal exercising respective territorial jurisdiction and such petitions shall be treated as petitions under the provisions of the Companies Act, 2013.
15th December, 2016
5.Transfer of RecordsRelevant records pursuant to the transfer of proceedings shall also be transferred by the respective High Courts to the Tribunal Benches having territorial jurisdiction forthwith over the cases so transferred.15th December, 2016
6.Fees not to be paidNotwithstanding anything contained in the National Company Law Tribunal Rules, 2016, no fee shall be payable in respect of any proceedings transferred to the Tribunal in accordance with these rules.15th December, 2016
  1. MCA vide notification dated December 07, 2016, notified the following sections.
S. No.SectionDescription of sections under Companies Act,2013
1Clause (23) of Section 2Definition of Company Liquidator
Eleventh Schedule of Insolvency and Bankruptcy Code, 2016 has amended the definition of the term “Company Liquidator” which states that "Company Liquidator" means a person appointed by the  Tribunal as the Company Liquidator in accordance with the provisions of Section 275 for the winding up of a company under Companies Act, 2013.
2Clause ( c )and ( d ) of sub-section ( 7 ) of Section 7As per Section 7(7) of the Act, where a company has been incorporated by furnishing any false or incorrect information or representation or by suppressing any material facts or information , then the Tribunal may:
( a )…..…
( b )……..
( c ) direct removal of the name of the company from the register of the companies; or
( d ) pass an order for winding up of the company
3Sub-section ( 9 ) of Section 8Section 8(9) deals with the transfer of proceeds of winding up of companies incorporated under Section 8 of the Act.
4Section 48Variation of Shareholder’s Rights
5Section 66Reduction of share capital
6Sub-section (2) of Section 224Power of Central Government to file a petition for the winding up of company  on the basis of inspectors report
7Section 226Voluntary winding up of the company, etc, not to stop investigation proceeding
8Section 230 [ except sub-section (11) and     ( 12 )],Power to compromise and make arrangements with creditors and members, except the case of Takeover as specified in Section 230(11) and Section 230(12).
9Section 231 to 233 & Section 235 to 240Compromises, Arrangements and Amalgamations (Chapter XV of the Act)
10Section 270 to 288 & Section 290 to 303Winding up by The Tribunals (Part I of Chapter XX of the Act)
11Section 324Debts of all descriptions to be admitted to proof
12Section 326 to 365Provisions applicable to every mode of Winding Up (Part III of Chapter XX of the Act)
13Proviso to section 370Section 370 : Continuation of pending legal proceedings
14Section 372Power of court to stay or restrain proceedings
15Section 373Suits stayed on winding up order
16Section 375 to 378Winding up of unregistered companies (Part II of Chapter XXI of the Act)
17Sub-section (2) of Section 391Section 391 : Application of Sections 34 (Criminal Liability for misstatement in prospectus) and Section 36 (Punishment for fraudulently inducing person to invest money) and Chapter XX (Winding Up)
18Clause (c) of sub-section (1) of Section 434Section 434 : Transfer of certain pending proceedings (Transfer of proceedings from High Court to the Tribunal)
  1. Further the Ministry of Corporate Affairs has issued Companies (Removal of Difficulties) Fourth Order, 2016 dated December 07, 2016 on transfer of pending proceedings under the Companies Act, 1956 from the High Court to the Tribunal, which shall also come into effect from December 15, 2016.
  • Proceedings (other than Winding-up) under the Companies Act, 1956 for which Orders are not reserved by the High Court shall be transferred to the National Company Law Tribunal w,e,f. December 15, 2016.
  • All Proceedings under the Companies Act, 1956 (other than the Winding-up matters) were order are reserved; and also Winding-up proceedings which are not transferred to Tribunal as per the December 7, 2016 notification shall be dealt in accordance with the provisions of the Companies Act, 1956 and the Companies (Court) Rules, 1959.

Comment: 

Pursuant to the notification becoming effective, National Company Law Tribunal will become the adjudicating authority for largely most of the matters under the Companies Act, 2013 (at present corporate restructuring like mergers, demergers etc., capital reduction, and winding-ups were dealt with by the High Courts exercising territorial jurisdiction over companies in accordance with the provisions of the Companies Act, 1956.

The proposed transfer of proceedings are aimed at making the adjudication process faster and time bound and ensure smother transition.  This also paves way for swifter mergers in between small companies and between parent company and its wholly owned subsidiary which may be effected without the approval of the Tribunal.  It appears going forward voluntary winding up matters will largely be effected under the IBCode, 2016 once the relevant provision is made effective as the corresponding provisions of the Companies Act, 2013 related to voluntary winding up under section 304 to 323 has been deleted vide notification under the IBCode, 2016.  At present there seems to be void till the time provisions of the IBCode, 2016 are notified for voluntary winding up.  

Further, provisions under the IBCode, 2016 has already been effected for seeking corporate insolvency resolution process against corporate persons (including companies) in cases where there is default in payment to an operational creditor or a financial creditor.  With the change in definition of ‘company liquidator’ the role of insolvency professionals governed under the Insolvency and Bankruptcy Board of India regime has already been recognised both under the Companies Act, 2013 and IBCode, 2016.

With the aforesaid notifications of December 7, 2016 substantial part of the Companies Act, 2013 has been notified and only a handful of sections remain to be notified.  Overall the changes will foster in ease of doing business in India as well as allow the businesses to be liquidated in short time span should the revival scheme or the resolution plan is not preferred or is otherwise voted out by the creditors.  

Click to the below links for the said notifications.
Companies (Transfer of Pending Proceedings) Rules, 2016
Notification regarding enactment of certain provisions of the Companies Act, 2013
Companies (Removal of Difficulties) Fourth Order, 2016


For more information contact author: Pankaj Jain, Email: pankaj.jain@vedalegal.in Mobile: 8447778422

Readers are requested to refer to original text of the notification.  
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Wednesday, 9 November 2016

India scrapped Rs 500 and Rs 1000 old notes

In a bold move that will add fuel the fight against corruption, black money, money laundering, terrorism and financing of terrorists as well as counterfeit notes, the Government of India has decided that the five hundred and one thousand rupee notes will no longer be legal tender from midnight, 8th November 2016.
The Government has accepted the recommendations of the Reserve Bank of India ("RBI") to issue new rupee notes of the denomination of two thousand rupees and also five hundred rupees which will be placed soon into circulation.
However, the notes of value of Rs one hundred, fifty, twenty, ten, five, two and one rupee will remain legal tender and will remain unaffected by the decision.
In a televised address to the nation the Prime Minister Shri Narendra Modi made these important announcements on the evening of Tuesday 8th November 2016. 
The Government claims that the steps would strengthen the hands of the common citizens in the fight against corruption, black money and counterfeit notes.
Any Persons holding old notes of five hundred or one thousand rupees can deposit these notes in bank or post offices from 10th November onwards till 30th December, 2016 
Will there be limits on withdrawal from ATM ?
There are also some limits placed on the withdrawals from ATMs and bank for the very short run.
Exemptions ?
Shri Modi stated that on humanitarian grounds notes of five hundred and one thousand rupees will be accepted at government hospitals, pharmacies in government hospitals (with prescription of a doctor), booking counters for railway tickets, government buses, airline ticket counters, petrol, diesel and gas stations of PSU oil companies, consumer cooperative stores authorized by the state or central government, milk booths authorized by state government and crematoria, burial grounds.
There is no restriction on any kind of non-cash payments by cheques, demand drafts, debit or credit cards and electronic fund transfer.
A time-tested commitment to eradicate black money
The Prime Minister has time and again said that the Government is committed to ensure that the menace of black money is overcome. Over the past two and a half years of the NDA Government, he has walked the talk and led by example.
The very first decision of the Prime Minister led NDA government was the formation of a SIT on black money.
A law was passed in 2015 on disclosure of foreign bank accounts. In August 2016 strict rules were put in place to curtail benami transactions. During the same period a scheme to declare black money was introduced.
The efforts have borne fruit. Over the past two and a half years, more than Rs. 1.25 lakh crore of black money has been brought into the open.
Raising the issue of black money at the world stage
Prime Minister Narendra Modi has time and again raised the issue of black money at the global forum, including at important multilateral summits and in bilateral meetings with leaders of the political parties.
Record growth in last two and a half years
The Prime Minister said that the efforts of the Government have led to India emerging as a bright spot in the global economy. India is a preferred destination for investment and India is also an easier place to do business in. Leading financial agencies have shared their optimism about India’s growth as well.
Combined with this, Indian enterprise and innovation has received a fillip due to the ‘Make in India’, ‘Start up India’ and ‘Stand up India’ initiatives that seek to celebrate enterprise, innovation and research in India.
For more information visit:  http://www.pmindia.gov.in/en/news_updates/pms-statement-prior-to-departure-for-japan/?comment=disable

Friday, 28 October 2016

MCA extends last date of filing of Financial Statements and Annual Returns for Companies till November 29, 2016


MCA has on October 27, 2016 vide General Circular No. 12/ 2016 extended the due dates for filing the Financial Statement & Annual Returns under the Companies Act, 2013 without payment of additional fees by the Companies till November 29, 2016.  

"In continuance  of this Ministry’s General Circular No. 08/2016 dated 29.07.2016, keeping in view the requests received from various stakeholders, it has been decided to further extend the last date  for filing of financial statements and annual returns e-forms AOC-4, AOC-4 (XBRL) AOC-4 (CFS) and MGT-7 as the case may be, without payment of additional fee, wherever applicable till 29th November, 2016."

Monday, 10 October 2016

CAN A CONCEPT NOTE BE COPYRIGHTED - Whether a concept note is a mere idea that does not merit protection ?

CAN A CONCEPT NOTE BE COPYRIGHTED  - Whether a concept note is a mere idea that does not merit protection ?
In India, ideas cannot be protected leading to the immediate conclusion that a concept being a mere idea is not protected under copyright law. Arguably, even if the idea were to be reduced to writing in the form of a concept note, the creation of a TV program based on the same idea (or concept) would not violate the literary work. It could be argued that the TV program would constitute an adaptation of the literary work and would therefore be an infringement of the copyrighted concept note. However, the term adaptation has been defined in a manner as to not include a cinematographic work at all.
Section 2(a)(ii) of the Copyright Act, 1957 defines “adaptation” in relation to literary works as “the conversion of the work into a dramatic work by way of performance in public or otherwise.”
Section 2(h) defines “dramatic work” as not including cinematographic films."
Further, section2(m)(i) defines “infringing copy” in relation to literary work as “a reproduction thereof otherwise than in the form of a cinematographic film;”
however, the Explanation to section51(b) appears to contradict section 2 (m) [or as one court has state, “carves out an exception to section 2(m)” in that it provides that for its purposes, the reproduction of a literary … work in the form of a cinematograph film shall be deemed to be an ‘infringing copy’. [Section 51 deals with when a copyright is infringed.]
Further, Section 14 of the Copyright Act, 1957 states:
14. “…, ‘copyright’ means the exclusive right subject to the provisions of this Act, to do or authorize the doing of any of any of the following acts in respect of a work or any substantial part thereof, namely, –
(a) in the case of a literary, dramatic or musical work, not being a computer programme,
(iv) to make any cinematograph film or sound recording in respect of the work;
From the above, although there seems to be a contradiction between sections 2(a)(ii) read with 2(h) and 2(m) and section 14 read with the Explanation to section 51(b), it appears that the exclusive right to make a cinematograph film in respect of a literary work lies with the author of the literary work.
 Whether a concept note is a mere idea that does not merit protection or whether it is a literary work, a subsequent creation of a TV program based on which would contravene section 51 of the Copyright Act?
In this regard the case of Urmi Chiang vs Global Broadcast News Pvt Ltd as well as the Swayamvar(Anil Gupta vs Kunal Dasgupta) case can be relevant.These cases have similar facts.
The following were facts established by these cases:
·       An idea per se has no copyright. But if the idea is developed into a concept fledged with adequate details, then the same is capable of registration under the Copyright Act.
·       In today's times where in the audience is so large proper credit needs to be given to the creator of the idea.
·       persons who create an idea/ concept or theme which is original, laws must ensure that such like people are rewarded for their labour.Otherwise authors of the ideas who are individuals, their ideas can be taken by the broadcasting companies or channels owning companies and the persons who has conceived the same, would be robbed of its labour.
·       Concept of Confidential communication- When an idea or concept has been developed to a stage that it could be seen to be a concept which has some attractiveness so as to get an audience on a television programme and could be realised as an actuality then the concept is capable of being the subject of confidential communication
  • Permissibility of registration of idea developed in a concept

An   idea per se has no copyright, but if the same was developed into a concept fledged with adequate details, the same could be registered under the provisions of the Copyright Act, 1957 – Further, in case the confidential information was used with certain variations, the same would amount to violation of copyright under Section 51 and 55 of the Act.

Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations (1961)

Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations (1961)
The Rome Convention secures protection in performances for performers, in phonograms for producers of phonograms and in broadcasts for broadcasting organizations.
(1) Performers (actors, singers, musicians, dancers and those who perform literary or artistic works) are protected against certain acts to which they have not consented, such as the broadcasting and communication to the public of a live performance; the fixation of the live performance; the reproduction of the fixation if the original fixation was made without the performer's consent or if the reproduction was made for purposes different from those for which consent was given.
(2) Producers of phonograms have the right to authorize or prohibit the direct or indirect reproduction of their phonograms. In the Rome Convention, “phonograms” means any exclusively aural fixation of sounds of a performance or of other sounds. Where a phonogram published for commercial purposes gives rise to secondary uses (such as broadcasting or communication to the public in any form), a single equitable remuneration must be paid by the user to the performers, to the producers of the phonograms, or to both. Contracting States are free, however, not to apply this rule or to limit its application.
(3) Broadcasting organizations have the right to authorize or prohibit certain acts, namely the rebroadcasting of their broadcasts; the fixation of their broadcasts; the reproduction of such fixations; the communication to the public of their television broadcasts if such communication is made in places accessible to the public against payment of an entrance fee.
The Rome Convention allows for limitations and exceptions to the above-mentioned rights in national laws as regards private use, use of short excerpts in connection with reporting current events, ephemeral fixation by a broadcasting organization by means of its own facilities and for its own broadcasts, use solely for the purpose of teaching or scientific research and in any other cases where national law provides exceptions to copyright in literary and artistic works. Furthermore, once a performer has consented to the incorporation of a performance in a visual or audiovisual fixation, the provisions on performers' rights have no further application.
As to duration, protection must last at least until the end of a 20-year period computed from the end of the year in which (a) the fixation was made, for phonograms and for performances incorporated therein; (b) the performance took place, for performances not incorporated in phonograms; (c) the broadcast took place. However, national laws increasingly provide for a 50-year term of protection, at least for phonograms and performances.
WIPO is responsible, jointly with the International Labour Organization (ILO) and the United Nations Educational, Scientific and Cultural Organization (UNESCO), for the administration of the Rome Convention. These three organizations constitute the Secretariat of the Intergovernmental Committee set up under the Convention consisting of the representatives of 12 Contracting States.
The Convention does not provide for the institution of a Union or budget. It establishes an Intergovernmental Committee composed of Contracting States that considers questions concerning the Convention .
This Convention is open to States party to the Berne Convention for the Protection of Literary and Artistic Works (1886) or to the Universal Copyright Convention. Instruments of ratification or accession must be deposited with the Secretary-General of the United Nations. States may make reservations with regard to the application of certain provisions.







Monday, 3 October 2016

Company Incorporation in India made Quick and Easy - MCA notifies changes to company setup norms

Indian Company Incorporation made Quick and Easy 



Ministry of Corporate Affairs (MCA) introduced SPICE (Simplified Proforma for Incorporating Company Electronically) w.e.f. 02.10.2016 in e-Form INC-32
Highlights of INC-32
1. This form can be filed even after approval of INC-1. This facility was not provided in INC-29.
2. Memorandum of Association (MOA) has been provided in Electronic Mode INC-33.
3. Articles of Association (AOA) has been provided in Electronic Mode INC-34.
4. In the new e-MOA & AOA there is no need of signatures of subscribers to MOA and AOA, instead of physical signing by subscribers the digital signatures (DSC) of subscribers can be affixed on MOA & AOA.
5. In the new e-MOA & AOA there is no need of signatures of witness, instead of sign of witness, the DSC of witness can be affixed on MOA & AOA eform.
6. Information in the eform has been increased in comparison of earlier eform INC-29
The change in procedural requirements for incorporation of Companies in India would facilitate ease of doing business in India and are especially aimed at reducing the time lines for setting up business in India. 
For more information on Companies Act, 2013 logon to New Corporate Laws Treatise www.nclt.in or write email to cs@nclt.in  

Sunday, 2 October 2016

Berne Convention for the Protection of Literary and Artistic Works (1886)

Berne Convention for the Protection of Literary and Artistic Works (1886)

The Berne Convention deals with the protection of works and the rights of their authors.

1.The convention provides for the three basic principles:

(a) Principle of national treatment: Works originating in one of the Contracting States (that is, works the author of which is a national of such a State or works first published in such a State) must be given the same protection in each of the other Contracting States as the latter grants to the works of its own nationals .

(b)Automatic Protection: Protection must not be conditional upon compliance with any formality.

(c)Independence of Protection: Protection is independent of the existence of protection in the country of origin of the work (principle of "independence" of protection).

2. The minimum standards of protection relate to the works and rights to be protected, and to the duration of protection:

(a) As to works, protection must include "every production in the literary, scientific and artistic domain, whatever the mode or form of its expression" (Article 2(1) of the Convention).

(b) Subject to certain allowed reservations, limitations or exceptions, the following are among the rights that must be recognized as exclusive rights of authorization:
the right to translate,
the right to make adaptations and arrangements of the work,
the right to perform in public dramatic, dramatico-musical and musical works,
the right to recite literary works in public,
the right to communicate to the public the performance of such works,
the right to broadcast (with the possibility that a Contracting State may provide for a mere right to equitable remuneration instead of a right of authorization),
the right to make reproductions in any manner or form (with the possibility that a Contracting State may permit, in certain special cases, reproduction without authorization, provided that the reproduction does not conflict with the normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author; and the possibility that a Contracting State may provide, in the case of sound recordings of musical works, for a right to equitable remuneration),
the right to use the work as a basis for an audiovisual work, and the right to reproduce, distribute, perform in public or communicate to the public that audiovisual work

The Convention also provides for "moral rights", that is, the right to claim authorship of the work and the right to object to any mutilation, deformation or other modification of, or other derogatory action in relation to, the work that would be prejudicial to the author's honor or reputation.

(c) As to the duration of protection, the general rule is that protection must be granted until the expiration of the 50th year after the author's death. There are, however, exceptions to this general rule. In the case of anonymous or pseudonymous works, the term of protection expires 50 years after the work has been lawfully made available to the public, except if the pseudonym leaves no doubt as to the author's identity or if the author discloses his or her identity during that period; in the latter case, the general rule applies. In the case of audiovisual (cinematographic) works, the minimum term of protection is 50 years after the making available of the work to the public ("release") or – failing such an event – from the creation of the work. In the case of works of applied art and photographic works, the minimum term is 25 years from the creation of the work 

(3) The Berne Convention allows certain limitations and exceptions on economic rights, that is, cases in which protected works may be used without the authorization of the owner of the copyright, and without payment of compensation. 

These limitations are commonly referred to as "free uses" of protected works, and are set forth in Articles 9(2) (reproduction in certain special cases), 10 (quotations and use of works by way of illustration for teaching purposes), 10bis (reproduction of newspaper or similar articles and use of works for the purpose of reporting current events) and 11b is(3) (ephemeral recordings for broadcasting purposes).





















Intellectual Property Rights

What is Copyright?
Copyright is a form of intellectual property protection granted under Indian law to the creators of original works of authorship such as literary works (including computer programs, tables and compilations including computer databases which may be expressed in words, codes, schemes or in any other form, including a machine readable medium), dramatic, musical and artistic works, cinematographic films and sound recordings.

Copyright law protects expressions of ideas rather than the ideas themselves. Under section 13 of the Copyright Act 1957, copyright protection is conferred on literary works, dramatic works, musical works, artistic works, cinematograph films and sound recording. For example, books, computer programs are protected under the Act as literary works.

Copyright refers to a bundle of exclusive rights vested in the owner of copyright by virtue of Section 14 of the Act. These rights can be exercised only by the owner of copyright or by any other person who is duly licensed in this regard by the owner of copyright. These rights include the right of adaptation, right of reproduction, right of publication, right to make translations, communication to public etc.

Copyright protection is conferred on all Original literary, artistic, musical or dramatic, cinematograph and sound recording works. Original means, that the work has not been copied from any other source. Copyright protection commences the moment a work is created, and its registration is optional. However it is always advisable to obtain a registration for a better protection. Copyright registration does not confer any rights and is merely a prima facie proof of an entry in respect of the work in the Copyright Register maintained by the Registrar of Copyrights.

As per Section 17 of the Act, the author or creator of the work is the first owner of copyright. An exception to this rule is that, the employer becomes the owner of copyright in circumstances where the employee creates a work in the course of and scope of employment.
Copyright registration is invaluable to a copyright holder who wishes to take a civil or criminal action against the infringer. Registration formalities are simple and the paperwork is least. In case, the work has been created by a person other than employee, it would be necessary to file with the application, a copy of the assignment deed.
One of the supreme advantages of copyright protection is that protection is available in several countries across the world, although the work is first published in India by reason of India being a member of Berne Convention. Protection is given to works first published in India, in respect of all countries that are member states to treaties and conventions to which India is a member. Thus, without formally applying for protection, copyright protection is available to works first published in India, across several countries. Also, the government of India has by virtue of the International Copyright Order, 1999, extended copyright protection to works first published outside India.




Saturday, 1 October 2016

Delhi University Photocopy Case- “Copyright is not a divine right”.






In a landmark Judgement the Delhi High Court has dismissed a petition filed by a group of international publishers against a bookseller in the Delhi  University's north campus. A plea was  filed by a group of international publishers who argued against the sale of photocopies of their textbooks.

The Delhi High Court's verdict pronounced that- photocopying portions of academic publications to make course packs for students does not amount to copyright infringement. This  has been considered by many as  a victory for the wider community interest .This will  further ensure affordable access to quality educational material.

 The   instant Question of Law held  in the suit filed by  the plaintiff (Oxford University Press, Cambridge University Press and Taylor & Francis)  was whether the making of course packs by the Delhi University by authorising a photocopying store to make numerous copies of course material drawn from different books amounts to copyright infringement.

The court says copyright is not a natural or common law right in India, but is subject to statute. It proceeds to hold that photocopying for academic purposes is not an infringement as" Section 52(1)(i) of the Copyright Act permits the making of copies of literary works by a teacher or pupil ‘in the course of instruction’, a phrase interpreted to cover whole academic sessions, from the preparation of syllabus onwards."

The above judgement of the High Court clearly reflects the  judiciary's efforts to balance copyright protection with the public interest -access for all, given that the law contains provisions barring infringement of copyright and listing acts that do not constitute infringement. The plaintiff had cited  the clauses and articles of  the Berne Convention and the Agreement on Trade-Related Aspects of Intellectual Property Rights, which provide for domestic legislation to permit reproductions for specific purposes. However the judge held  this is as "No-infringement' as these above mentioned clauses clearly mention -'as  long as they do not conflict with normal exploitation of the works or unreasonably prejudice the rights-holder.'It was thus held by the court that such photocopying doesn't lead to unreasonble prejudice or exploitation of the publishers.

The publishers had argued  that universities should not allow unrestricted photocopying, but instead apply for licences through the Indian Reprographic Rights Organisation, a registered copyright society.
This judgement raises few important questions about good of the public versus the claims of the publishers regarding unrestricted copyright protection.



PROJECT SAKSHAM

Project Saksham:

The Cabinet Committee on Economic Affairs(CCEA) under the  chairmanship of Prime Minister Narendra Modi has approved ‘Project SAKSHAM’. The Project SAKSHAM is a New Indirect Tax Network (Systems Integration) of the Central Board of Excise and Customs (CBEC). It seeks to bolster the information technology network for the new Goods and Services Tax (GST) regime that the Union Government intends to roll out from 1st April 2017.
The Project SAKSHAM will help in Integration of CBEC IT systems with the Goods and Services Tax Network (GSTN). Extension of Indian Customs Single Window Interface for Facilitating Trade (SWIFT) Other taxpayer-friendly initiatives under Digital India and Ease of Doing Business of CBEC
With the implementation of GST, the Union government expects the number of taxpayers under indirect tax laws to increase to about 65 lakh from the current 36 lakh.
CBEC’s IT systems need to integrate with the GSTN for processing of registration, payment and returns data sent by GSTN systems to CBEC.
It will also act as a front-end for other modules like audit, appeal and investigation. However, there is no overlap in the GST-related systems of GSTN and CBEC.
IT infrastructure is also required for continuation of CBEC’s e-services in customs, central excise and service tax, implementation of taxpayer services, extension of SWIFT initiative and integration with government initiatives such as e-Taal, e-Nivesh and e-Sign.

The Main Highlights  of the Project ‘SAKSHAM’ are:
  • Expansion of the Indian Customs Single Window Interface for Facilitating Trade (SWIFT)
  • Implementation of Goods and Services Tax (GST),
  • Ease of Doing Business of Central Board of Excise and Customs and taking important initiatives under Digital India

It is important for the implementation of the GST as the project will ensure the work of the CBEC’s IT systems before the deadline. The necessary upgrades will be carried out while maintaining the pace with the existing Tax-payer services in the country.
After the roll out of GST Law all importers/exporters/taxpayers administered by the CBEC will go over 65 lakhs from the existing figure of about 36 lakhs.
The CBEC’s IT systems will be eventually integrated with the Goods & Services Tax Network (GSTN) for payment and returns, registrations, GSTN Data transfer to CBEC and other modules such as Investigation, Audit and Appeal. No chances of overlap in the CBEC and GSTN.
For the continuation of CBEC’s e-Services in Customs, Central Excise & Service Tax, implementation of tax¬payer services, the IT infrastructure is required for accomplishing several tasks like scanning document, uploading, extension of Indian Customs Single Window Interface for Facilitating Trade (SWIFT) initiative and collaboration with government aided initiatives such as e-sign, E-Taal, E-Nivesh, etc.


Friday, 2 September 2016

CORPORATE DIRECTORS


http://blog.nclt.in/

DIRECTORS
  
Under the Companies Act, 2013 director means ‘a director appointed to the Board of a company’. The definition suggests that a person not appointed to the Board of company is not a director. In these terms, the appointment to the Board of a company becomes essential to call a person as a director. Mere nomination by a nominator as a director will not be enough. It requires specific act of appointment on the Board either by the company or by the Board of Directors under the provisions of the 2013 Act, as the case may be. The director can be defined on the basis of his roles, responsibilities, liabilities, duties and the position he occupies in a company.


The Companies Act 2013 refers to the following two specific categories of Directors:
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·         Managing Director: A Managing Director is one who is responsible for overall management and operation of the company. A company can have more than one managing director. There are, however, restrictions on appointment of a person as a managing director in more than one public company.   

Managing Director is a Director who has substantial powers of management of the affairs of the company subject to the superintendence, control and direction of the Board in question. Substantial powers of management of the affairs of the company indicate overall management of the company’s affairs.

A managing director falls within the category of an executive director and managing director is considered as the Key Managerial Person under the Companies Act, 2013.

·         Whole-time Director: Whole-time Director is a Director who is in the whole-time employment of the company, devotes his whole-time of working hours to the company in question and has a significant personal interest in the company as his source of income.

A whole-time director looks after functional areas of the company’s management and is not entrusted with overall management of the company’s affairs.

Whole-time director is also an executive director and whole-time director is also considered as one of the Key Managerial Person under the Companies Act, 2013.
Every listed company and every other public company, having a paid-up share capital of ten crore rupees or more (Rs. 10,00,00,000/-) shall have a Managing or Whole-time Director or a Manager.















Classification of Directors                                                                                                                   

I.            On basis Circumstance of Appointment
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·         First Directors: Subject to any regulations in the Articles of a company, the subscribers to the Memorandum of Association, or the company's charter or constitution ("Memorandum"), shall be deemed to be the Directors of the company, until such time when Directors are duly appointed in the annual general meeting ("AGM").

·         Casual vacancies: In the case of a public company, if the office of any director appointed by the company in General Meeting is vacated before his term of office expires in the normal course, the resulting vacancy may, subject to the Articles, be filled by the Board. Such person so appointed shall hold office up to the time which the Director who vacated office would have held office if he or she had not so vacated such office.


·         Additional Directors: If the Articles specifically so provide or enable, the Board has the discretion, where it feels it necessary and expedient, to appoint Additional Directors who will hold office until the next AGM. However, the number of Directors and Additional Directors together shall not exceed the maximum strength fixed in the Articles for the Board.

·         Alternate Director: If so authorized by the Articles or by a resolution passed by the company in general meeting, the Board may appoint an Alternate Director to act for a Director ("Original Director"), who is absent for whatever reason for a minimum period of three months from the State in which the meetings of the Board are ordinarily held. Such Alternate Director will hold office until such period that the Original Director would have held his or her office. However, any provision for automatic re-appointment of retiring Directors applies to the Original Director and not to the Alternate Director.

·         'Shadow' Director: A person, who is not appointed to the Board, but on whose directions the Board is accustomed to act, is liable as a Director of the company, unless he or she is giving advice in his or her professional capacity. Thus, such a 'shadow' Director may be treated as an 'officer in default' under the Companies Act.

·         De facto Director: Where a person who is not actually appointed as a Director, but acts as a Director and is held out by the company as such, such person is considered as a de facto Director. Unlike a 'shadow' Director, a de facto Director purports to act, and is seen to the outside world as acting, as a Director of the company. Such a de facto Director is liable as a Director under the Companies Act.

·         Rotational Directors: At least two-thirds of the Directors of a public company shall be the persons whose period of office is liable to determination by retirement of directors by rotation. One-third of such directors are liable to retire by rotation. The directors retiring by rotation are known as Retiring Directors. Such retiring directors are eligible for re-appointment. If, for any reason, the vacancy of the retiring directors is not filled up at the annual general meeting or at adjourned meeting, then the retiring directors are deemed to have been reappointed.


·         Nominee Directors: They can be appointed by certain shareholders, third parties through contracts, lending public financial institutions or banks, or by the Central Government in case of oppression or mismanagement. The extent of a nominee Director's rights and the scope of supervision by the shareholders, is contained in the contract that enables such appointments, or (as appropriate) the relevant statutes applicable to such public financial institution or bank. However, nominee Directors must be particularly careful not to act only in the interests of their nominators, but must act in the best interests of the company and its shareholders as a whole. The fixing of liabilities on nominee Directors in India does not turn on the circumstances of their appointment or, indeed, who nominated them as Directors. Chapter 4 and Chapter 5 that follow set out certain duties and liabilities that apply to, or can be affixed on, Directors in general. Whether nominee Directors are required by law to discharge such duties or bear such liabilities will depend on the application of the legal provisions in question, the fiduciary duties involved and whether such nominee Director is to be regarded as being in control or in charge of the company and its activities. This determination ultimately turns on the specific facts and circumstances involved in each case.