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Target set on “Big-Tech Platforms” with amendments proposed to the IT Rules, 2021

Target set on “Big-Tech Platforms” with amendments proposed to the IT Rules, 2021

With India having the second-highest digital consumption and internet users in the world, makes it a lucrative market and a breeding ground for various social media platforms as well as content providers. In view thereof, the need for and importance of a robust digital content-regulating legislation cannot be undermined. Enacted with an intention to provide the necessary legal framework, the Information Technology Act, 2000 (“IT Act”) and the corresponding rules have had to walk a tight rope. Between protecting the delicate rights of the “digital nagriks”, such as their freedom of speech, right to reputation, copyright in their content etc. on one hand, and, conditionally safeguarding the digital platforms from every other “questionable” content posted/uploaded by third party “nagriks”, on the other, this legislation has been put to test on several occasions. In fact, right after being notified by the Ministry of Electronics and Information Technology (“MeitY”) last year notification last year (May 2021), the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“IT Rules”) have been mired in several litigations and controversies. Recently, on June 6, 2022, the MeitY re-published draft amendments to the IT Rules for public consultation and stakeholders’ comments, after initially withdrawing it on 2nd July, 2022 on account of an ‘editorial’ glitch. The public note accompanying the draft amendments that evidently sets the target on the ‘Big Tech Platforms” questioning their accountability is particularly interesting to note:

Putting the Interests of Digital Indians First

Proposed amended IT rules to provide additional avenues for grievance redressal apart from Courts and also ensure that the Constitutional rights of Indian citizens are not contravened by any Big-tech Platform by ensuring new accountability standards for SSMIs. …..

as the digital eco-system and connected Internet users in India expand, so do the challenges and problems faced by them, as well as some of the infirmities and gaps that exist in the current rule vis-a-vis Big Tech platform. Therefore, new amendments have been proposed to the IT Rules 2021, to address these challenges and gaps.


While the amendments proposed in the draft do not particularly appear to be an attack on the Big Tech platforms (such as Twitter, Meta’s Facebook, Instagram and Google’s YouTube, to name a few), the actual effect of the proposed amendments pose a challenge to their existing autonomy and the compliance requirements now expected of them are nothing short of onerous, making ‘due diligence’ a behemoth task. We have analyzed the four crucial amendments proposed by the MeitY and our comments on the same hereinbelow:

1. Requiring intermediaries to “ensure” that users comply with requirements in rule 3(1)(a) and rule 3(1)(b) of the IT Rules 2021

Under the existing IT Rules, an “intermediary”1, as a part of their due diligence requirement, is required to prominently publish on its website, mobile based application or both, as the case may be, the rules and regulations, privacy policy and user agreement for access or usage of its computer resource by any person. The proposed amendment additionally requires that the intermediaries shall now have to “ensure” that users comply with the said rules/policies, by: one, informing the user of the rules/policies in place, and second, “causing the user” not to host, display, upload, modify, publish, transmit, store, update or share any information that the user does not have right over or is inconsistent with the laws of the country (as prohibited under rule 3(1)(b), IT Rules).

This amendment requiring “ensuring” users’ compliance of the platform’s rules/policies and “causing” the user not to act in contravention with the provisions of the IT Act and Rules, is vague and worrisome for the following reasons:

i. CONTRADICTS THE SAFE HARBOUR PROVISION OF THE IT ACT: Section 79 of the IT Act allows the intermediaries an immunity or a “safe harbour” against liability for any third-party information, data, or communication link made available or hosted by them. However, this safe harbour is conditional, and subject to Section 79(2)-(3) of the IT Act. A platform/service will qualify for an intermediary defence only if: one, its function is limited to providing access to a communication system over which user generated content/information is hosted or temporarily stored; two, the platform does not initiate, select the receiver or modify the content of the transmission which is made or stored by third parties; and, three, the intermediary observes ‘due diligence’ and also observes other guidelines provided by the Central Government. The ‘due diligence’ to be observed have been provided under IT Rules with several landmark decisions (such as Shreya Singhal case2, MySpace case3 etc.) providing clarity as regards compliance by the intermediary. It is only logical to assume that for “ensuring” or “causing” the users’ compliance of the platforms’ privacy policy/ terms and conditions, the platform will have to now scrutinize, sift and regulate the content/information posted/uploaded by the users as a part of the “additional due diligence” requirement necessary for claiming intermediary status. This ‘additional’ due diligence shall cause the platform to lose the intermediary status right away as its function shall now no longer be ‘limited to providing access’, and the platform shall have to ‘select the receiver’ and/or ‘modify the content’ to comply with the amended rules. Evidently, the proposed amendment is in conflict with the safeguards provided to the intermediaries under the parent legislation.

ii. ABOVE AND BEYOND THE EXISTING DUE DILIGENCE REQUIREMENTS: The various decisions on ‘due diligence’ requirement of the intermediaries have settled the manner and extent to which the platforms/service providers have to act in order to be safeguarded from user (third party) generated content. The due diligence requirement is limited to publishing policies, terms and conditions, user agreement etc. for its users only informing them that they are required to comply with rule 3(1)(b). And, it is been repeatedly held that the intermediaries cannot be asked to screen or regulate content as it would fall outside the ambit of “intermediary status” as laid down in the IT Act.4 Further, it has also been well established that infringing/objectionable content can only be removed upon the intermediary “receiving actual knowledge” of such content, by way an order or direction from the court or a government agency, as laid down in Shreya Singhal case5 and/or knowledge based on specific information (such as the specific URL/s) given by the person whose work was being infringed by the content uploaded, as established in the MySpace case. If an intermediary fails to remove or disable access to the content which is unlawful upon despite actual knowledge, it shall be in breach of the due diligence threshold and would fall out of the ambit of the ‘safe harbour’ provided to an intermediary. While providing general mechanisms for identifying infringing content, such as the Rights Management Tool, Notice and Take Down provision, Take Down Stay Down tool and Hash Block Filter, have been found as effective tools for complying with the due diligence requirement of social media platforms (MySpace case), none of these existing tools appear to be technologically sufficient in “ensuring” compliance of the platforms’ policies/terms/rules in the manner proposed in the amendment. The ‘due diligence +’ requirement is not only onerous but almost impossible to meet, considering, the Big Techs have to handle a humungous amount of data/content on a daily basis.

2. Addition of rule 3(1)(m) and 3(1)(n) to respect the principles of the Constitution of India

With the laudable intent of protecting and safeguarding the rights guaranteed under the Constitution, the MeitY has proposed an addition to the ‘due diligence’ requirements whereby:

One, the intermediary shall take all reasonable measures to ensure accessibility of its services to users along with reasonable expectation of due diligence, privacy and transparency;


Second, the intermediary shall respect the rights accorded to the citizens under the Constitution of India.

It would not be an exaggeration to say that the devil lies in the lack of details. Not defining key terms in the proposed amendment above, such as “accessibility”, “privacy” transparency” and failing to elucidate what taking ‘reasonable measures’ or ‘respecting the rights’ would practically entail, makes this addition open to interpretation, confusion and invariable litigations (should the amendment come into force, as is). It is again important to flag that any regulation or sorting or control on the content/information by the platforms shall strip them of the intermediary status offering safeguards under the IT Act.

3. Changes in the grievance redressal mechanism of the intermediary under rule 3(2)

The existing mechanism entails acknowledgement of a complaint by the Grievance Officer within 24 hours, followed by its disposal within 15 days of receipt. The amendment clarifies that the complaint includes requiring actions where a user or user account is to be suspended, removed or blocked, or an information or communication link is requested to be suspended.

The amendment has further proposed that where the nature of the complaint requires an information or communication link to be removed, it shall be required to be acted upon and redressed within 72 hours of reporting, with ‘appropriate safeguards’ ‘to avoid any misuse by users’. While the objective of the timeline appears to preventing objectionable/unlawful content’s proliferation (i.e. going viral), there are several practical issues that Big Techs may face:

For starters, it has been acknowledged time and again that Big Techs deal with massive amounts of data daily and consequently, several complaints are raised each day. The redressal timeline of 72 hours may be quite onerous. Further arises the question, whether a delay in meeting with said timeline (by say, a few hours) would strip the platform of the intermediary status?

Secondly, requiring take down of content in such a short time may result in more removals to err on the side of caution, thereby resulting in stifling the free speech that the said amendments were proposed to safeguard in the first place.

Lastly, the “appropriate safeguards” that intermediaries are expected to put in place to avoid misuse of the proposed mechanism by users need to be clarified further. Most intermediaries would not have the wherewithal in the first place to set up such complex technological measures/tools. That, with lack of clarity on what is considered “appropriate” or “sufficient” makes the entire task an uphill one for the platforms/service providers.

4. Creating a new Grievance Appellate Committee to provide an appeal mechanism to users:

The constitution of the Grievance Appellate Committee – which allows the persons aggrieved from the decision of the Grievance Redressal Officer of the intermediary to approach them in appeal – instead of moving to a court of law, is not problematic per se. It provides an alternative forum to file appeals, without taking away the right to move to the court, irrespective.

What is disconcerting however, is that there is no clarity provided under the (draft) rules regarding the constitution of the Committee, the scope of their jurisdiction and powers, the nature of the proceedings, the procedure they would follow and the binding nature of their orders/directions etc.. Most importantly, it is unclear if the intermediary shall also be given an opportunity to present their case in an appeal before the Committee. If not, how shall the intermediary be made to comply by the orders/directions, how would principles of natural justice be upheld without giving a necessary party opportunity to be heard and would that not result in a waste of time and resources, and wouldn’t this invariably lead to appeals before the courts, putting the very purpose of the Committees constitution into question.

To sum up, the draft amendments as they stand today, have validly caused an upheaval among the intermediaries and relevant stakeholders, and are bound to face resistance from the industry. In what shape would the IT Rules, 2021 be notified as amended, after due consultations, is only a matter of time; however, in the present form, the proposed amendments are set to upturn all the developments that laws related to intermediaries have seen thus far and are bound to result in a multitude of litigations on their validity.


Twitter Lockouts and Copyright Conundrums

Recently we wrote about the new rules for social media in India, that caused uproar. Well, this seems to be the theme of the season. Twitter found itself mired in yet another controversy for suspending accounts of IT Minister Ravi Shankar Prasad and Chairman of the Parliamentary Standing Committee on IT, Shashi Tharoor. Whether it is coincidence or some sort of irony, we will never know.

On the 25th of this month, IT minister Ravi Shanker Prasad’s Twitter account was blocked for an hour. Soon after, Shashi Tharoor found he had been locked out of his account (again) in trying to explain why he was locked out the first time. Both lock outs were a consequence of DMCA notices received by Twitter for A.R. Rahman’s Maa Tujhe Salaam and Boney M’s Rasputin respectively. Had this happened a few months ago, it may not have made headlines. But now, considering the riot that the new IT rules have caused, even a one hour lock out has caused controversy.

Ethics That Call For ‘Due Diligence’ and Notices

The IT Minister accused Twitter of violating Rule 4(8) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 where they failed to provide him any prior notice before denying him access to his own account. Here’s how Rule 4(8) reads:

  1. Additional due diligence to be observed by significant social media intermediary.—(1) In addition to the due diligence observed under rule 3, a significant social media intermediary shall, within three months from the date of notification of the threshold under clause (v) of sub-rule (1) of rule 2, observe the following additional due diligence while discharging its duties, namely:—

(8) Where a significant social media intermediary removes or disables access to any information, data or communication link, under clause (b) of sub-rule (1) of rule 3 on its own accord, such intermediary shall,—

(a) ensure that prior to the time at which such intermediary removes or disables access, it has provided the user who has created, uploaded, shared, disseminated, or modified information, data or communication link using its services with a notification explaining the action being taken and the grounds or reasons for such action;

(b) ensure that the user who has created, uploaded, shared, disseminated, or modified information using its services is provided with an adequate and reasonable opportunity to dispute the action being taken by such intermediary and request for the reinstatement of access to such information, data or communication link, which may be decided within a reasonable time;

The Rule addresses removal and disabling of information, data or communication link (essentially hyperlinks) and is silent on the disabling of an account. In these cases, it wasn’t the content that was removed or made inaccessible, users were shut out of their accounts. The Rule in its present form doesn’t seem to cover a situation such as this. That said, Twitter in its Copyright Policy states that a ‘good faith attempt’ will be made to contact the user whose content was removed based on a copyright notice.

The Balancing Act

Weighing the right of a user to have uninhibited access to his/her social media account against copyright is a precarious balance that needs to be first understood and then struck. Copyright laws are in place to ensure a healthy environment for creativity. While access to social media accounts is an important part of life (especially in today’s digital age), honouring copyright is even more so (for most of use, it’s content that’s kept us sane through lockdowns).

While most of us don’t want to intentionally flout copyright laws, not knowing the extent of ‘fair use’ can sometimes get us into trouble. This Twitter lockout being case in point. This was a classic case of copyright infringement for a musical work for which Sony Music (Maa Tujhe Salaam) owned copyright. In the event that the music was used after permission for use was sought, or if the song used was in the public domain (like Happy Birthday To You), or the platform it was being used on had a license from the rights holder, this wouldn’t have amounted to a copyright violation.

The general principle applicable to the use of copyright protected content on all social media posts is that all pictures, songs, media used without consent of the copyright holder amounts to infringement. Many social media sites today like Instagram and TikTok have a repository of IP protected content that has been licensed to them. As users of these apps, you and I can use this content without worry of being slapped with a copyright infringement claim. You’ll notice you cannot (legally) use this music outside of the platform though, for their licenses are limited to use on the specific platform alone. For instance, when you save a reel off Instagram, the music you’ve used to make it disappears. This is the social media app honouring the terms of its license.

Now you know what you shouldn’t do. Here’s a quick checklist to run through before you use copyright protected content on your social media posts:

  • Check to see if the content is licensed. If you hold a valid license, by all means, use it!
  • Not sure if the content you’re using is copyright protected and don’t know how to check for a license? Avoid using it as is. Look to see if you find a paid version of it, download it and then use it in your post.
  • Always give the author of the work credit for it. Remember, the idea of copyright law is to prevent the unauthorized use of copyright protected work. If creators are not given their fair due, why will they create?

More than the light this controversy has shed on the tension between the Government and social media platforms, it’s given us all a reason to learn the ethics of content use on the internet. Artists create content not only because of a deep need to, but to make a living. Let’s always remember that and do our bit by sharing it right.



Who is a Performer?

A “Performer” under the Copyright Act (Act) includes an actor, singer, musician, dancer, acrobat, juggler, conjurer, snake charmer, a person delivering a lecture or any other person who makes a performance. While inherently, the law provides for ownership of all copyright to vest in the author of the work, the title is also transferrable under the law.

Transferability of Copyright

The Act lays down a mode and method of transferring copyright by way of assignment or license. Section 18 of the Act provides for the right to transfer of title of the copyright and mandates that the Assignee be treated as the owner of the same.  Section 19 lays out guidelines for modes of assignment and the requirements for a valid assignment. It also provides for interpretation of period of assignment and territorial extent of assignment in case an assignment does not explicitly lay it down. Section 30A extends the applicability of these provisions to licenses as well. Section 38 of the Act provides an exclusive right to Performers for their performance and Section 38A lays down all the ways in which a Performer can utilise their act of performance. The proviso to section 38A provides for the Performer’s right to royalty in case of commercial use of the same.

Section 18 – Introduction of new provisos via the Copyright Act of 2012

Before the introduction of the Amendment Act of 2012, there was only one proviso to section 18 which laid down a limitation/qualification to the assignment title being effective only after the realisation of a future work. After the amendment act of 2012, three additional provisos have been inserted.

Exploitation only in the mode and media assigned: The first restricts assignment only to the extent of exploitation via media or modes that exist or are in commercial use at the time of assignment, unless the assignment specifically provides for a source other than those. Assignment does not automatically extend to future modes and media or a medium or mode of dissemination made commercial after the assignment.

No Assignment or Waiver of Royalties: The second and third prohibit an author of a literary or musical work from assigning or waiving the right to receive royalties on an equal basis with the assignee whether included in a cinematograph film or not.

The Playing Field of Royalty and Waiver

Royalty waiver capped at 50%

The amendments use the words “right to receive royalties to be shared on an equal basis with the assignee”. This means two things:

  1. Every author has the right to royalty which CANNOT be waived.
  2. In case of assignment, these rights are to be shared on an EQUAL basis with the assignee.

The act provides for a waiver. But the maximum waiver permissible is 50%. Any agreement entered into to the contrary will be void.

To illustrate, let’s say an owner of a musical work enters into an agreement with a broadcasting agency with a royalty assignment in a ratio 30:70 in favour of the broadcasting agency. Such agreement would be rendered void. If the royalty assignment was made inversely, it would be permissible under the Act.


There are three exceptions which allow for assignment of royalties of more than 50%, even entirely. This can happen in the following cases:

  1. assignment of the right to communicate the literary/musical works to the public, along with the cinematograph film in a cinema hall;
  2. assignment made to a legal heir of the author; or
  3. assignment made to a copyright society for collection and distribution of royalties.

Introduction of sub-sections (8), (9), (10) to section 19

Section 19 provides for mode of assignment. Here’s a round-up of the major changes:

  1. Assignment of copyright to a third party contrary to the terms and conditions of the rights assigned to a copyright society which the author is a member of shall be void. [Section 19(8)]

This insertion has been made to protect Copyright Societies and to streamline royalties by establishing these as a distinct channel for royalty distribution. By virtue of the amendment, the title transfers from an author to the copyright society of which (s)he is a member. Consequently, if an author wants to grant a third person an assignment or a license, (s)he will have to renounce membership from the copyright society before doing so.

  1. When an author assigns or licenses copyright in in his/her work, including sound recordings for a cinematograph film, his/her right to claim equal share in royalties remains unaffected. An exception is made for “communication to the public of the work, along with the cinematograph film in a cinema hall”. [Section 19(9) and Section 19(10)]

Application of amendments – Prospective, Retrospective or Retroactive?

The Act does not throw light on the applicability of these amendments. So, we’re applying the golden rule to reading the provisions.

First, Section 18 – “shall not assign or waive”

From a plain reading, it indicates a prospective application. The usage of “shall” indicates that it is a mandate on the author that can be applicable only once the provisions come into force.

Second, the S 19(9) and 19(10) – “no assignment..shall effect the right”

The subsection merely says “no assignment”. It does not specify “no future assignment”. So, it seems the intention is to protect the right against every assignment, whether made before or after the amendment came into force. This may not necessarily imply that the subsections are applicable retrospectively, however, it makes it amply clear that no assignment, whether future or past shall take away the ability of the author to claim an equal share of royalties and considerations payable. Therefore, the sub sections could be said to operate ‘retroactively’.

It also supports a logical conclusion that past assignments, where all royalties may have been assigned, would not be rendered void, but would no longer affect the author’s claim to equal royalties.

The jurisprudence and precedents on this subject are limited, therefore the interpretation of the courts may vary. This is the personal opinion of the author : Jashandeep Kaur


What’s the Whatsapp Controversy?

Social media has helped us build bridges in a time we couldn’t traverse real ones. Then came along these new IT rules threatening a shutdown of what had become life savers in a pandemic. Panic and pandemonium was a natural consequence.

Whatsapp was the knight in shining armour and sued the the Indian Government. The extent and the validity of the new IT Rules, 2021 were questioned. Under the rules, Whatsapp must disclose the origin of messages sent using the app. Whatsapp has a problem with this rule because:

  1. It is in violation of their Privacy Policy promising end to end encryption.
  2. They believe if to be a violation of every human being’s fundamental right to privacy.

The Government justified the rules citing reasons of national security, law and order. They believe that controlling the spread of fake news is the need of the hour. And these rules are a way to do so.

The balance of these interests is what needs to be achieved harmoniously.

The Government gave social networking sites three months to abide by the new Rules. That deadline ended on 25th May, 2021. The Rules call for the appointment of a Chief Compliance Officer, a Nodal Contact and a Resident Grievance Officer. The Government cites reasons of creating a robust mechanism to prevent the spread of hate speech and misinformation.


On 26th May 2021, the Ministry of Electronics and IT issued a press release. It listed the following:

1) The Right to Privacy is a fundamental right and it shall not be infringed. However, no fundamental right is absolute. They all come with reasonable restrictions attached. None of the new reforms would impact the functioning of WhatsApp.


2) Disclosing the source of messages will be the last resort. Rule 4(2) of Intermediary Guidelines will apply. The extent of disclosure is when matters concern the sovereignty, integrity and security of India or heinous crimes. Disclosure is mandated only for investigative purposes.

3) In 2018 the Government had proposed to amend section 79 of the IT Act. This amendment was for tracing of origin of information for legal compliance. No objections were raised by WhatsApp then. It was noted that WhatsApp already shares encrypted information with its parent company, Facebook. This is an infringement of the law and a gross violation of the Right to privacy.

4) International precedent was also cited. Many countries including Canada, U.S.A, Australia and U.K. have passed legislation to the same effect. Brazilian law calls for provision of IP Addresses, customer information and geo-location data under certain circumstances.


Revenue for social networking platforms comes largely from advertising and promotions. India holds the second largest market for social media use. It stood at 326.1 million in 2018 and is expected to grow to 448 million by 2023.

Facebook India’s revenues grew by 43 percent year-on-year to about Rs 1,277.3 crore in 2019-20. Its net profit more than doubled to Rs 135.7 crore.

WhatsApp has 400 million users in India and has reported revenues of Rs 6.84 crore.

Understandably, no social network wants to lose the Indian market.

Compliance will also mean modifications of present versions of programming. This would lead to resource drain that ma not have been part of company budgets. Imagine having to programme the same app for the same purpose, but around specific laws.


The Government believes that WhatsApp owes a certain responsibility to India for the business it does here. Especially since it allows for free dissemination of information.


The Government insists that the Rules are being implemented to safeguard national interests, and the people at large. The IT Act and Telegraph Act allow retrieval of information by enforcement agencies. But advanced technology and end to end encryption is making this more and more difficult.

The only way for WhatsApp to identify the source of a message is to do away with end-to-end encryption. This is a loss of its USP an is bad for business. Also, it’s an attack on the right to privacy of its users. End-to-end encryption doesn’t allow for retrieval of content. For compliance, Whatsapp will now store this as as “hashed” data. This means more server space and no regard for data minimization polices.

An adverse decision resulting in a ban in the WhatsApp matter means India will be in tyrannical company. India will join the elite list of China, North Korea, Syria and Iran.

Let’s call this the first wave. The second one is coming. The Personal Data Protection Bill, 2019 is almost ratified.


Who owns a song?

Who owns a song?

Music has always remained an integral part of Bollywood and the music industry has seen an incremental rise in the last ten-fifteen years of relative digital-democratization of filmmaking as a result of the proliferation of YouTube, rise in the number of OTT platforms and various other factors.

This rise in the music streaming applications such as Spotify, Wynk music and etc. has given the artists additional platforms to earn revenue from their intellectual property i.e., their music. Making songs is not really a ‘one-person job’ as it is essentially intertwining of melody and lyrics which means more people are involved behind the making of one soundtrack like lyricist, composers, music director, producer etc. This confluence of people, playing various roles to bring together a soundtrack also raises the question of who actually owns the song as his own intellectual property. The answer is rather complex and can be answered through the prism of the Copyright (Amendment) Act, 2012 and various judgments pronounced by the Supreme Court.

Meaning of copyright-

Copyright means an exclusive right over one’s own creation of the mind, that is, their intellectual property. Having attained copyright over a song or movie prevents the ‘work’ from being-

  • Reproduced by someone else,
  • Performed in public i.e., performance rights,
  • Communicated to the public in the form of uploading it on streaming platforms like YouTube,
  • Distributing copies of ‘original work’ to the public,
  • Renting or licensing the ‘work’ to others.

It is important to note that the term ‘song’ is not defined anywhere in the act, so to answer the question of who actually owns a particular musical work, the song would be divided into two categories i.e., one being a part of a cinematograph film and the other being not part of a cinematograph film.

For the songs which do not form part of any cinematograph film, the Copyright (Amendment) Act, 2012 defines the various ownership that a person can claim within the song.

  • The composer of a musical work is an author by virtue of section 2(d)(ii),
  • The lyricist is an author in relation to the literary work, that is, lyrics by virtue of section 2(d)(i) and
  • The producer in relation to a sound recording is an author by virtue of section 2 (d)(v) of the Copyright (Amendment) Act, 2012.

For the songs that are a part of a cinematograph film, the ownership of that particular song boils down to the type of arrangement made in the contract. In most cases, the producer of the movie ends up being the owner of the song because the artists who play different types of role in making of the song assign their right of ownership in exchange of monetary consideration.

However, in cases where the contract is loosely drafted or the producer uses the particular song anywhere apart from the movie to attract audiences or to earn money with help of that song, Supreme Court judgments like that of Indian Performing Rights Society LTD V/s Eastern India Motion Pictures Association,[1] help getting the various artists their well-deserved royalties. Nonetheless there are a few rulings in which the courts have not awarded the right to royalties to everyone.

The term of copyright as prescribed in the Copyright (Amendment) Act, 2012 is sixty years, whereas the term of copyright for literary works and musical works lasts lifelong in addition to sixty years from the time of his death. This ruling essentially means that even the next generation of these people would be deprived of the well-deserved royalties due to a loosely drafted contract, which signifies the importance of proper legal guidance at the time of drafting a contract for any matter related to intellectual property.


Written by-

Bhuvan Malhotra

Protecting Architectural Designs

An Architectural Design is the conceptualization of the elements that comprise a building or a structure. It is the creativity of an architect whose intellectual property is protected by not one, but three IPR regimes. 

In India, Architectural Design is protected by the – 


  • Copyright Act, 2012

  • Design Act, 2000

  • Trademark Act, 1999


Interestingly, all the aforementioned acts have provisions of protecting an architectural design. However, the protection granted under these regimes depends on the facts and circumstances and varies from case to case. 


Copyright Act 


Under Section 13 of the Act, copyright is granted to various works, artistic work being one of them. By definition, Artistic Works under section 2 (c) (ii) of the act mean “any building or structure having an artistic character or design, or any model for such building structure.” Therefore, an architectural design being a ‘building, structure or the design of such model’ is granted copyright protection under artistic works. It must however be kept in mind that only original works can be granted copyright protection therefore the architectural design must not be plagiarized.

The author (architect) of the architectural design is also granted moral rights under section 57 of the act. Thus, he has the right to claim authorship of the work and also prevent its distortion. To this end, the author can in most copyright infringement cases ask for an injunction to stop the infringer from using his/her work, however, under section 59 of the act, a remedy for copyright infringement may not available to such artist when construction of the building or structure has commenced.  

Further, under section 52 of the act, architectural designs are subject to the fair use doctrine, therefore, there is no infringement when photos of the protected buildings are taken or when such buildings come in the background in a cinematograph film

In India, copyright protection is granted to works that are original since their inception, therefore Architects do not need to register their architectural design per se, however, they have the option to do the same as it may make their case stronger if there is an infringement. 

Following is a list of the Registration Fes for registering an Architectural Design-

Work Registration Fee
Literary, Dramatic, Musical or Artistic Work Rs.500/- per work


Designs Act

As mentioned earlier, an Architectural Design can also be registered with the Designs Act under section 2 (d). The protection granted under the Designs act is quite similar to the Copyright Act as it requires the architectural design to be original. Though unlike the Copyright Act makes it mandatory for the author to register his work.

An Architectural Design can be registered with the Designs Act under the following circumstances-

  1. If it has been registered under classes 25-03 and 25-99 of the Designs Act ;
  2. if it has been produced more than fifty times, and the Copyright Act is no longer applicable. 

Therefore, an architectural design that is either registered under the Designs Act or that has been produced for more than fifty times can only seek infringement protection under the Design Act.  

Fee for registration under the Design Act-

On what payable  Fees for Natural Person For other than Natural Persons either alone or jointly with a natural person
Application for registration under section 5 & 44 Rs.1000 Small entity- Rs. 2000

Other than a small entity- 



Trademark Act 


The Trademark act permits for registration of Architectural Designs under section 2 (1) zb wherein a Trademark is defined as –

a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others..

The intention behind registering an architectural design as a trademark is to ensure that there are no replications of the structure. A building will be eligible for trademark protection as long as it can fulfill the test of graphical representation and an indication of the source.  ‘Graphical representation’ means that the mark must have a physical form whereas, ‘indication of the source’ means that the building should be associated with the trademark owner and the goods and services offered. Therefore, the architectural design seeking a trademark should be able to distinguish itself from others who offer similar goods and services.

In India, the first building to be granted trademark protection is the Taj Mahal Hotel, Mumbai. It was registered under class 43 as “services providing food and drink; temporary accommodation. 

The benefit of registering under the Trademarks Act is that it increases the commercial revenue while also protecting the distinctiveness of the work. 

Fee Structure for Registration- 

Application for registration of a mark  Physical Filing  E-Filing 
Where the Applicant is an individual/Startup/Small Enterprise  Rs. 5,000 Rs. 4,500
In all other Cases (Note: Fee is for each class and for each mark) Rs. 10,000 Rs. 9,000



The Copyright Act gives a universal umbrella protection to the architectural design regardless of whether or not it is registered. However, an author can step out this all-embracing protection by registering with the Design Act or the Trademarks Act. 

It is the author’s personal opinion that an architectural design should be registered with the Design Act, in situations where the production of more than 50 copies is anticipated. Registration with the Trademark Act is relatively difficult, as the architectural design will have to fulfil the test of graphical representation and an indication of a source, which is why trademark registration works best for heritage buildings or tourist spots like the Oprah House Sydney. 

The jurisprudence and precedents on this subject are limited therefore the interpretation of the courts may vary. This is the personal opinion of the author.

Coronavirus outbreak


The coronavirus causing COVID-19 has spread like wildfire, playing havoc with the global supply chains, bringing the world economy to an unprecedented standstill. These extraordinary times we find ourselves living in is certainly throwing light on some interesting issues in the realm of contract management.

How does COVID-19 affect contractual obligations?

While it has made it difficult for some parties to execute their contractual obligations, it has left others absolutely incapable of execution. 

In the thick of this scenario, parties are reviewing their contracts and hoping to rely on ‘force majeure’ clauses to temporarily suspend their performance obligations under the contract to protect themselves from failure to provide goods or services and in some cases to completely end their contractual arrangement. Luckily, the Department of Expenditure (Procurement Policy Division) of the Ministry of Finance vide an office memorandum dated 19.02.2020 has called the outbreak of COVID-19 a natural calamity and has clarified that ‘force majeure’ may be invoked whenever appropriate following ‘due process’. Though this interpretation by the government may not be binding it may still have persuasive strength in interpreting contracts with the Government of India.

What is Force Majeure?

‘Force Majeure’ is a contractual provision. According to Black Law’s Dictionary “it is an event or effect that can neither be anticipated nor controlled… that prevents someone from completing or doing something that he or she had agreed or officially planned to do”. This concept has neither been defined nor specifically mentioned in statues, so whether or not it can be invoked will depend on the general terms of the contract, the events that precede or succeed it and the facts of the case.

What legal provision govern the claim for Force Majeure in India?

Indian Contract Act does not specifically provide for Force Majeure. Some reference however has been made under Section 32 of the Indian Contract Act, 1970 to contracts that are contingent on the happening of a certain event, where if the event becomes impossible it renders the contract void. This means that there may be certain unanticipated events outside the control of parties that may render a contract unworkable for a limited time while the event lasts, leaving a window for normalcy once the event ceases to exist. It is during such circumstances that ‘force majeure’ comes into play.

What type of events qualify as Force Majeure? Is the outbreak of COVID-19 a force majeure situation?

Force Majeure provisions in contracts tend to be formulated in one of the two ways. 

  • The parties to the contract may mutually decide over the list of events to be categorized under this clause, which typically includes acts of war, riots, fire, flood, hurricane, earthquake, explosion, strikes, lockouts, slowdowns, prolonged shortage of supplies, governmental action etc.
  •  It is either a closed list of categories, such as “a finite list of force majeure is the following events ……” or it is an open list of categories, such as “force majeure is the following types of events; including …….” 

In India the closed list tends to be more favoured. The current outbreak of COVID-19 has been declared a pandemic by the World Health Organization and interestingly you will rarely see the word pandemic listed in force majeure clauses. If you do see it listed in the clause, then you know that you are within the force majeure territory and you can go on to test other elements of force majeure that might be available, and if not, then that makes navigating through the force majeure regime a lot more difficult. 

Alternatively, you may notice many contracts referring to the Act of God. This is an interesting one, because the Act of God traditionally tends to be ‘weather dependent’ and without human interference and in that sense a pandemic or epidemic, tends to not be considered as an Act of God. While some parties to a contract may term the disruption in the supply chain due to the pandemic – a natural calamity, or an Act of God, others may argue that forced quarantine or travel bans are the roots of such disruptions and are ‘acts of government’. Therefore, the sole inclusion of an ‘Act of God clause’ does not ensure the recovery of losses caused by COVID-19. 

To that end, the key factors to check for force majeure are-

– Do you have a closed or open list? 

– Do you see the word ‘pandemic’ mentioned under the provision?

– If not, you may want to look at other categories such as ‘disease,’ ‘epidemic,’ ‘quarantine,’ or ‘acts of government,’. 

It is important to note that in cases where “epidemics” or “acts of Government” are mentioned apart from the force majeure clause, the courts would additionally subject you to show proof of cause, a harmonious construction with other provisions and compliance with the conditions contained in the force majeure clause.

What would an affected party do to claim relief in case the contract does not include an express force majeure clause? 

In case the contract does not include a force majeure clause, or the existing clause does not include a particular event, in such a situation the affected party may be able to discharge the contract using the ‘Doctrine of Frustration’. It is a common law doctrine enshrined under Section 56 of the Indian Contract Act, 1970, and it protects parties against circumstances where their contracts have become impossible to perform and such impossibility in performance may be due to the occurrence of an event which affected their ability to perform. It is however extremely important for the application of doctrine of frustration that such person could not have done anything in their power to prevent such an event from happening and that the impossibility is neither self-induced nor a result of negligence. Further, it is really important to bear in mind that the performance has to be impossible, not just difficult or more time consuming or expensive, IMPOSSIBILITY IS WHAT IS REQUIRED. 

How have the courts interpreted the word ‘impossible’ provided under section 56 of the Indian Contract Act, 1872?

In regard to the word ‘impossible’ the Supreme Court in Satyabrata Ghose v. Mugneeram Bangur and Co. & Anr. held that the word impossible under Section 56 of the Act to “not be used in the sense of physical or literal impossibility. The performance of an act may not be literally impossible but it may be impracticable and useless from the point of view of the object and purpose which the parties had in view; and if an untoward event or change of circumstances totally upsets the very foundation upon which the parties rested their bargain, it can very well be said that the promisor found it impossible to do the act which he promised to do.” 

There is a vast variety of Indian case laws on the doctrine of frustration and one must keep in mind that it is a very high bar to achieve. This can be evidenced by a recent landmark judgement titled Energy Watchdog Vs. Central Electricity Regulatory Commission where the Supreme Court held that force majeure clauses are to be narrowly construed. The court opined that in the force majeure clause contained in the contract in question, “hindrance” could mean an event wholly or partly preventing performance. However, a mere increase in prices would not amount to a hindrance. It was held that since the force majeure clause specifically excluded rise in fuel cost, the fundamental basis of the contract was never dislodged. In view of the fact that alternative modes of performance were available even though the same were at a higher price, a force majeure situation did not arise. The Court further held that since there was a specific clause addressing force majeure in the contract in question, Section 56 of the Contract Act would not have any application. 

The two things to note here are that 

  • the force majeure event must lead to an impossibility; mere hardship, inconvenience or material loss cannot be considered as a force majeure event AND
  •  in case there is a specific force majeure clause in the contract, then Section 56 would have no applicability because essentially the doctrine of frustration results in killing the contract and hence should not be lightly invoked.

How to protect yourself from the legal implications of COVID-19?

At present it is impossible to ascertain the exact damage caused by COVID-19, nonetheless it is advisable for businesses to equip themselves in case of any prospective dispute. Parties to the contract must abide by the terms of the agreement and requirements of force majeure clauses. The affected party must promptly notify the counterparty regarding the occurrence of a force majeure event and must collect all documents to produce as evidence in case of a dispute at a later stage. Most importantly, parties must get their contracts evaluated in detail by legal professionals. 

The jurisprudence and precedents on this subject are limited therefore the interpretation of the courts may vary. This is the personal opinion of the author.

Do start-ups need lawyers?

India has an ever growing startup ecosystem. It is a common misconception that it is ok to work on available legal templates or take legal advice from CAs, and lawyers should be engaged only for complex deals. CAs can effectively advise a start-up on tax aspects but more than often do not take into consideration the applicability of other laws leading to start-ups being legally non-compliant. Accordingly, when lawyers do get involved, there is a vast backlog of things to do to rectify the legal mess that is created (not every mistake can be fixed!!), which is expensive, time consuming and inconvenient. Certain wrongful actions, inactions or non-compliances can be deal breakers or lead to a major drop in a start-up’s valuation.

Involving lawyers at an early stage helps one in availing the advantages of beneficial laws that have been enacted in favour of start-ups, making an organisation better structured, organised and legally strong, and dealing with legal risks more effectively. Further, the longer a lawyer is involved in a business, the better the lawyer understands the business enabling him to deliver practical, reliable and result oriented advice that is more aligned with a business’ goals and objectives. Lawyers can help a start-up in various matters such as company formation, IP creation, shareholders’ agreement, employee agreements, funding and regulatory compliance, to name a few.

As start-up entrepreneurs, one needs to focus on growing the business in the right direction.  Hiring the right corporate lawyer at an early stage of a business can do wonders for a start-up, and increase the chances of its success.


Divya Jyoti Mehra

Partner – Corporate Law – Talwar Advocates



In the modern globalised economy, INTELLECTUAL PROPERTY is one of the integral parts, which covers copyright, Trademark, Design, Geographical indications, Patent, Industrial designs, etc.

Intellectual property registration and protection is essential to guard invention. In case no legal protection is provided to such creative innovations, then the individual would not be able to reap the full benefits of their inventions and creativity would suffer as a result.

Trademark, one of the branches of IP is a mark or symbol which differentiate the goods or services of one proprietor from that of another. In short trademark signifies the brand, name, with which are associated the goodwill and reputation of proprietor business. This makes Trademark registration an important part of IP.

In INDIA the trademark registration is looked after by CONTROLLER GENERAL OF PATENTS DESIGNS TRADEMARKS, MINISTRY OF COMMERCE AND INDUSTRY, GOVERNMENT OF INDIA. Government has taken every possible step to simplify the procedure of registration for trademark . Recently the controller general office has released its annual report for 2017-2018 which highlight the extent of activities undertaken by office.


The report shows that No. of application file with the office of the registration of Trademark have decreased marginally   from 278170 to 272974 (2017-2018). However, an important point to be mentioned here is that the no. of trademark registered by the controller general’s office has increased substantially from 65045 in 2015-2016, to 250070 in 2016-2017, to 3000913 in 2017-2018. Potential reason for increase is the signified registration and speedy disposal by the CONTROLLER GENERAL’S OFFICE.

This simplified procedure for registration has simultaneously resulted in an increase in the foreign applications, from 11440 in 2016-2017 to 25307 in 2017-2017, almost double. Out of the total foreign applications 13475 have been filed through Madrid System , which is a primary international system for facilitating the registration of  Trademarks in multiple jurisdiction around the world .Among the Indian applications, most are from the state of Maharashtra , with 63070 applications in total . The field of Advertising, Business management Business Administration office functions have witnessed maximum applications, with 26467 applications out of total 272974 applications, while the minimum have been registered for musical instruments other than talking machines and wireless apparatus, accounting for only 250 applications.

There are five branches of CONTROLLER GENERAL’S office including the head office at MUMBAI. The maximum applications have been filed at Delhi branch and minimum at Kolkata branch. As far as the number of Trademark registered are concerned, maximum have been in the field of medical , pharmaceuticals , veterinary and sanitary substances etc. with a total of 43371 trademark being registered while the minimum registration has been witnessed by musical instrument (other than talking  machines and wireless apparatus) with as low as 545 mark being registered.

From the registration fees being deposited by the applicants, the controller general’s office has generated a revenue of 286.11 cr. in 2017-2018, which is comparatively higher to  the revenue of 192.36 cr. generated in 2016-2017. The no. of Trademarks published in the journal have increased from 67796 in 2013-2014 to 423030 in (2017-2018). The no. of trademarks registered have increased from 67796 in 2013-2014 to 300913 in (2017-2018).


Controller General’s office not only looks after the registration of Trademark, but also review the application for renewal of trademark, scrutinizes the opposition filed by any third party against the trademark published in the journal and settle down the dispute related to the trademark registration if there is any . Thus the office of Controller General is the most important office dealing with all this issues related to not only Trademark but every other branch of Intellectual Property. 

10 Reasons why start-ups should understand how Intellectual Property system works

Start-ups are companies founded by forward looking individuals and dynamic entrepreneurs in search of scalable and repeatable business models. It is a nascent and a new business venture with the primary objective of developing a viable business model to meet newly emerging market place needs and addressing their problems.
Start-ups start with ideas nurtured by hard work and launched in a manner which results in quick and constant growth. Understanding Intellectual Property issues and legal ramifications is of utmost importance for start-ups to ensure their survival, growth and progress. A deep understanding of IPR is sine quo non-if they are not to be nipped in the bud. Start-ups have to be protected from the sharks who steal away the original ideas, inventions, the labours of creativity and the like. In today’s world IPRs major components include copyrights, trademark rights, industrial property, patents, geographical indications, plant varieties, industrial designs, layout designs of integrated circuits and the like.

Every start-up is particularly based on a novel idea and proper practice of one such idea is what transforms small start-ups into multibillion-dollar corporation. An example in the case is Thomas Eddison, the American Inventor and business man instrumental in developing many devices in fields such as electricity generation, sound recordings, motion pictures and many other fields. Today we are basking in the glory of landmark inventions like the electric bulb, etc. due to preservation of the inventions through IP. Some of the recent examples could be of Apple as developed by Steve Jobs. The core of IP Laws lies in protecting the idea or concepts that defines your start-up. An IP is actually an asset to your company and enhances your commercial value as a well-defined and well IP protected start-up attracts more investors and gradually more business.

Intellectual property laws provide a protective umbrella in avoiding infringement claims against the start-ups. An important component of IP protection includes searches regarding similar inventions or trademarks already prevailing in the public domain. Tracking such companies or individuals can insulate the start-ups from financial crises later due to patent or copyright infringements. The heavy investments in the companies would be negated and siphoned off due to high stake lawsuits.

IP goes a long way in preempting other companies and stopping them encashing upon the goodwill of start-ups. An IP protection is guaranteed by a registration certification which acts as a notice to public that a software, logo or a patent belongs to you. Before using an IP, other companies or individuals should first check the IP India website and database to see if a similar idea is already in use.

After successfully registering a patent, copyright or a trademark, an obvious presumption is created that an idea or property belongs to its holder. This gives the start-up an advantage in an infringement law suit as the IP registration will create a presumption in favor the holder in the legal proceedings.
Not protecting one’s novel idea or software which forms the core of the start-up could jeopardize the entire venture. An IP protection ensures stability and security to investors as they prefer investing in a start-up which is having a well-developed IP strategy.

If a start-up idea is based on an open source software, then the owner of such software should secure IP protection by way of copyright. Since open source software is generally free and offers expeditious development, the developer must ensure IP protection so that the start-up proprietary rights over the software are not lost.
Trade Secret Protection under IP Law helps startups to protect confidential information. It has been used to protect one of the most valuable secrets of the world including the Coca Cola recipe and Kentucky Fried Chicken (KFC). Thus, a start-up should enter into a written agreement with its employees and establish full-proof security protocols.

Safeguarding Intellectual Property which includes using copyrights, trademarks, and patents is much easier during infancy than protecting after that idea has fructified into a full blown success. IP protection not only prevents others from infringing or profiting from your business but also helps in attracting investors, suppliers, partners and more business as this form of protection offers more security with potential success.
Understanding of the copyright and its related laws would be essential in protecting the literary work, artistic and musical works, the computer software programmers and the works of architecture. It is essential for preserving monumental works like the famous David, the Leaning Tower of Pisa, the Taj Mahal, and other monuments down the ages.

The works of Shakespear, Tolstoy, Thomas Hardy, Rudyard Kipling and the like are also the Progenies of Copyrights whether in the legalistic terms or in the literal practical terms.
Start-ups need to develop an international perspective of geographical indications. They need to follow the dictates of the Paris Convention for protection of industrial property. The convention refers to the protections not as Geographical indications but as indications of source.

Then, Article 1(2) of the Lisbon Agreement mandates that member countries should provide protection to the appellations of origin of the products manufactured in other member countries.

Then, Section 3 of the TRIPS AGREEMENT deals exclusively with Geographical Indications. The ultimate objective of the agreement is to prevent misuse of the benefits of Geographical Indications. IP relating to Geographical indication is helpful in protecting products like Darjeeling Tea, Scotch Whisky, the Paris perfume, the Basmati Rice, the Swiss Chocolate, Banaras Silk and other products centralized to territories, regions or countries.
Further, India has Bio Diversity and protection against Bio-Piracy is of utmost importance. Awareness of the UN Convention on Biological Diversity (CBD) which was signed at Rio in 1992 is indispensable for start-ups with related products. Apart from conservation of biological diversity, the CBD aims at fair and equitable benefits arising out of utilization of genetic resources and transfer of technology.

Ravi Sodhi