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.