a)      Rameshwar Prasad v Union of India,[3] is a landmark case, in this the Supreme Court reviewed the constitutional validity of the centre’s decision of dissolution of Bihar State Legislative Assembly and the validity of the proclamation of President’s Rule under Article 356 of the Constitution. This situation arose because in the State Elections of Bihar in 2005 a fractured verdict was delivered, which resulted the Governor recommending an Emergency in the State. Subsequently, political shuffles ensued between parties and the National Democratic Alliance (NDA) claimed to have the requisite numbers to form a Government. The Governor, however, wrote to the President informing him that financial incentives had made politicians switch their support, and then submitted a final report to the President recommending dissolution of the assembly.[4]  The court’s verdict was, that the dissolution of a state assembly and a proclamation of President’s Rule is unconstitutional, it also said the court has the power to restore a dissolved assembly of any state by the appropriate measures. The court in its verdict stated that an assembly is ‘duly constituted’ when the election commission declared the names, as per Section 73 of the Representation of People’s Act, 1951. This judgement highlights how an executive and legislation comes into existence after an election.

b)      In State of Rajasthan v Union of India[5], initially a question arose in Rao Birinder Singh v Union of India[6], whether the right to declare emergency under Article 356 is with the executive branch of the government and could it be judicially scrutinised. The court in this case held that, courts have no jurisdiction to ask for review of material on which the president has depended his reasons or ‘satisfaction’.

Similarly, in State of Rajasthan v Union of India, the court unanimously declared that the power under Article 356 is out of the scope of review. The court reasoned that any such proclamation of emergency could either be a ‘preventive or a curative action’,[7] so the satisfaction attained would be subjective in nature and could not be assessed through any tests. The court also concluded that the centre can give directions to the state if it is of the opinion that the state government are acting in ways which contravene the provisions of law.

c)      The S.R. Bommai v Union of India [8] case is a very important case, herein the apex court decided the extent and scope of judicial review of president’s reasoning for Proclamation of Emergency under Article 356. It was decided that the power granted by the said article is reviewable on various grounds, such as whether the data provided to the president by the cabinet is relevant and the reasoning for proclamation was justified and not made in bad faith. The court also decide that such proclamation is subject to review so as to ensure that they do not violate the basic structure of the constitution. further such review is permissible and pertinent because if a state has followed the provision in the constitution and there is no probable reason of any proclamation of emergency, it is not justifiable to proclaim on just because there is different political party at centre that at the state.

d)      In U.N.R. Rao v Indira Gandhi[9], the question before the court was whether an executive government could exist even after the dissolution of the legislature. The court interpreted the language of Article 74(1), which states that there “shall” be a council of ministers which assist the president, this council will remain in office even after the dissolution of the legislators or Lok Sabha. The court reasoned that in case of approaching article 74 as merely directory and switching the word “shall” with “may”, it would mean as the president acting independently without any aid from the council of ministers. therefore, even if the Lok Sabha is dissolved a parliamentary form of government requires that a democratically elected branch is present to advise the president.

e)      In Samsher Singh v State of Punjab[10], the issue under question was the Governor’s power which enables him to recruit persons to the judicial services, conferred under Article 234 of the Constitution of India. The contention of the petitioners was that the Governor should act in their personal capacity instead of relying on the aid and advise of the Council of Ministers. Since India follows the example of United Kingdom which is a Parliamentary Form of Government, this implies that the Governor or President is only a nominal head and the real power vests in the prime minister. Hence, it was decided that the Governor should take the advice of the Council before deciding on matters.

f)       In Ram Jawaya Kapur v State of Punjab[11],  this followed the verdict of Samsher Singh, it held that the before the executive can perform its duties it must have the confidence of the legislature and that executive action takes place subject to the control and authority of the legislature.[12]

g)      The Additional District Magistrate Jabalpur v Shivkant Shukla[13], is a very important case, and has been mentioned in many publications, a very crucial precedent for the courts. This was filed in the backdrop of 1975 Proclamation of Emergency, after certain individuals were detained under Maintenance of Internals Security Act, 1971, filed for an issuance of a writ of habeas corpus in several high courts. The proclamation of 1975 had suspended Articles 14, 21 and 22 of the Constitution. Therefore the 1975 Presidential Order was ‘unconditional’, that is, it suspended appeal without reference to any particular statute, leaving the High Courts no standard against which to evaluate detentions.[14] The High Court said that they were empowered to assess the rightness of the detention orders on the grounds of ‘internal disturbance’ therefore, the court decided that ‘no person has any locus standi to move any writ petition under Article 226 before a High Court for habeas corpus or any other writ or order or direction to challenge the legality of an order of detention on the ground that the order is not under or in compliance with the Act or is illegal or is vitiated by mala fides factual or legal or is based on extraneous consideration’[15].  

h)      In Minerva Mills v Union of India[16], this case was subsequent to the ADM Jabalpur case and it received a similar verdict. The petitioner challenged the constitutionality of legislation passed by the 1976 Parliament, on the grounds that its life had been extended by Proclamations that were unreasonably prolonged (the 1971 Proclamation) or mala fide (the 1975 Proclamation).[17] Confronted with the Attorney General’s claim that a Proclamation was not justiciable because ascertaining whether the country faced a grave emergency was a ‘political question’, PN Bhagwati J responded that it would be improper for the Court to decline to investigate whether the President had failed to abide by the provisions of Article 352.[18]

i)       In Rameshwar Oraon v State of Bihar and Ors.[19], the court held that the State Governments have to necessarily act according to the direction they have given by the Central Government.

j)       In State of Karnataka v Union of India & Another[20], the court stated that the Central Government has the power to give direction to the State Government, doing so not because of geographical or territorial unit reason but because they are constitutionally or legally empowered to do so.

The abovementioned cases are related to various issues that have arisen between the centre and states, the judgements given are not necessarily correct, such as the ADM Jabalpur case and the Minerva Mills case, the obiter has been changed in later cases after much debate and deliberations. These cases have been uses time and again for reference and are some of the very notable pieces of judgements given in the legal history.

The post Centre-State Relationships: A Journey Through the Landmark Judgements appeared first on Legal Desire Media and Insights.

The Indian constitution grants certain Fundamental Rights to its citizen, enabling them to live with dignity and integrity and promote the idea of political democracy. These rights are enshrined in Part III of the constitution running from Article 12 to 35. Part III is described as the Magna Carta of India. It contains a long list of justiciable fundamental rights and is essential for individuals’ overall growth (material, intellectual, moral, and spiritual). Therefore, fundamental rights are given to all without discrimination on any grounds of sex, race, caste, religion, place of birth, or any of them.  

It is pertinent to note that these rights are justiciable against the ‘State.’ In case of any violation, a writ petition can be sought, under article 32 or 226, to obtain judicial decisions regarding the same. Thereby to answer the purpose of this paper, it is essential to understand what comes within the ambit of the expression ‘State.’

State:

The Indian Constitution defines ‘State’ in Article 12 –

 “Unless the context otherwise requires, the term state includes the following-

Executive and legislature of the union and states; all local or other authorities within the territory of India or under the control of Government of India.”[1]

The law dictionary defines it as a body politic or society of men united together to promote their mutual safety and advantage by their combined strength’s joint efforts.

Individuals need the fundamental rights for the State’s actions, which has the caliber of affecting these basic rights, which are a crucial aspect of an individual’s liberty and integrity in a democratic setup. Therefore, constitutional rights are generally applied vertically, acting as a citizen’s weapon against the State, and have been made directly enforceable only against bodies covered by the ‘State’ definition.

The mention of all the parties in Article 12 denotes that these bodies can violate the fundamental rights of the citizens and an individual to seek remedy for any such violation in the form of writ petitions. Here, the question arises whether the Judiciary, an organ of the State itself, is termed as the protector and guarantor of fundamental rights, capable of violating them. The expression is not conclusive and can include other bodies as well.

What it includes:

While defining this Article’s scope, Dr. BR Ambedkar said that fundamental rights would be binding on every authority. By the word ‘authority,’ he meant all bodies with the power to make laws or the power to have discretion vested in them.[2] Article 12 of the Indian Constitution mentions that the term State includes the Central and State Governments, Parliaments and Legislatures, and all local or other authorities functioning under India’s Government or Indian territory.

Executive and legislature of the central government and state governments

This includes the Union and State Governments, India’s president, and the Governors of State, which forms the Executive part. The term Government also includes departments of the Government and institutions under the control of any such departments.

Local authorities

This has been defined under section 3 of the General Clauses Act and includes bodies like:

1.      Municipalities- municipal corporations Nagar Palika, Nagar panchayat

2.      Panchayats zila panchayats Mandal panchayats gram panchayats

3.      District boards

4.      Improvement trusts etc.

Other authorities:

This term can be interpreted as those who have the power to make laws and regulations and the power to enforce them. There have been many attempts to solve this term. Initially, the scope was very narrow. It included bodies which bodies of a like nature, i.e., ejusdem generis; this meant that only bodies which had a governmental function or sovereign function were to be included. It cannot involve a person, natural or juristic. But later, this rule could not be used because there was a lack of common genus in the named bodies, and hence, they could be placed in one category as a rational basis. With more time and several more cases, the Judiciary widened the scope of this expression. Therefore, several issues have set up guidelines, falling under which a body is termed ‘State.’

In R.D. Shetty v International Airport Authority of India,[3] the court laid down the following test while trying to determine whether a body is an agency or instrumentality of the Government:

·         Wherein Financial resources of the State are the chief funding source.

·         Existence of deep and pervasive state control

·         The functional character being governmental.

·         If the body or department of Government is transferred to a corporation

·         Whether the corporation enjoys monopoly status, which is State conferred or State protected

These tests are not conclusive but illustrative only and will have to be used with care a caution and should not be stretched so far as to bring in every autonomous body with some nexus with the Government within the sweep of Article 12.

In Ajay Hasia v Khalid Mujib[4], the court said that the emphasis should be on how it is created by why it has been brought into existence. It is immaterial whether the corporation has been created by a statute or under law.

In Pradeep Kumar Biswas v Indian Institute of Chemical Biology,[5] the guidelines were:

·         The principles laid down in Ajay Hasia are not rigid, so if a body falls within any of them, it must be ex hypothesi be considered to be a state within the meaning of article 12.

·         If the body is financial, it is administratively dominated by or under the control of the Government.

·         Such control must be particular to the body in question and must be pervasive.

·         Whether under statute or otherwise, Mere regulatory control would not serve to make a body a part of the State.

Broadly applying these guidelines:

·         The courts are created by a statute, Art 124-147. (composition and jurisdiction)

·         The expenses of the courts are charged from the consolidated fund of India.

·         The court enjoys a monopoly in the field, and such status is State conferred, and State protected.

·         All functions of the courts are public functions.

·         It is an independent body. There is only regulatory control of the Government.

 Whether Judiciary is ‘State’?

The Indian Constitution under Article 12 does not explicitly mention the term ‘State,’ which gives them the liberty to pass judicial decisions (decisions issued by courts concerning writ petitions or matters of fundamental right contravention brought before it) which might contravene the fundamental right.

The position of Judiciary concerning Article 12 depends upon its judicial and non-judicial decisions wherein if the Judiciary is deciding cases it cannot be brought under the expression state while performing its non-judicial functions they are included within the definition of State, since if the courts are entirely exempted from the State, then it would have an unsurmountable power to make laws that contradict fundamental rights. This is supported by Article 13, which provides that any law made in contravention of fundamental rights is void, and since courts have the power to make laws, this implies that they are State about this function. On the other hand, Article 141 purports that the supreme court’s decree binds upon all courts within India’s territory. Therefore, supreme courts’ decisions cannot be questioned, but the findings of subordinate courts can be challenged if they violate fundamental rights.

In the case Naresh Sridhar Mirajkar v State of Maharashtra.[6], the petitioner contended that the high court had violated his art 19(1)(a), it was held that there was no violation of fundamental right even if a court is the ‘State’ under Article 12, ‘a writ under Article 32 cannot be issued to a high court of competent jurisdiction against its judicial orders, because such charges cannot be said to violate the fundamental rights. What a judicial decision purports to do is decide the controversy between parties and nothing more. The court noted that Judiciary, while exercising its rule-making power under Article 145, would be covered by the expression ‘State’ covered by the expression state within the meaning of Article 12. Still, while performing its judicial decisions, it is not included. The court relied on the Ujjam Bai v State of UP, [7]Judgment wherein it was held that a quasi-judicial or judicial body in the exercise of its functions could not violate fundamental rights. Therefore, a writ of certiorari cannot be issued against a high court. It has been held that if an order passed by the Supreme Court violates the constitutional rights of the citizens and is against the principles of natural justice, it should be corrected by ex debito justitiae (i.e., as a matter of freedom), and it is not amenable to be updated by the writ jurisdiction under Article 32 of the Constitution.

In Rupa Ashok Hurra v Ashok Hurra[8], the Supreme Court reaffirmed and ruled that no judicial proceeding could be said to violate any fundamental right.  It was said to be a settled position of law that superior courts of justice do not fall within the ambit of ‘State’ or other authorities under Article 12. Therefore, it can rightly be said that while courts perform their administrative function, they are within the State’s definition and cannot violate any fundamental rights of the citizen. Still, when they give judicial decisions, they do not come within the meaning of State.

When talking about part IV of the constitution, the courts have differed in opinion in State of Kerala v N.M. Thomas,[9] held that the courts’ decision must “inform and illuminate” the court’s interpretational task, based on the view that they are State under art 12. Therefore, it was inferred that the Judiciary is ‘state’ when talking about part IV of the constitution.

The National Commission to Review, the Working of the Constitution (NCRWC), has recommended that an explanation be added to Article 12 wherein the word ‘other authorities’ would mean the authorities whose functions relate to a public nature.

Conclusion:

The Judiciary position is still very ambiguous when we talk about Part III of the constitution, but efforts have been made and precedents laid down to clarify them. The Judiciary is one of the Government’s three organs, and its purpose gives it an immense amount of power over the citizens. The Judiciary must ensure that the other two organs should not violate any basic or fundamental rights. The duty lies with the courts to clarify Article 12 to ensure that it does not infringe any right while performing its duties.

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Court Name: Supreme Court of United States

Date of Judgement: March 22, 2017

Bench Name: Supreme Court

Facts: The Respondents (Varsity Brands) are manufactures of cheerleading uniforms. They design, make, and sell them in the market. Over the years, they have acquired more than 200 registered copyrights for two-dimensional structures. These designs consist of many lines, chevrons, and vibrantly colored shapes, which appear on the surface of these cheerleading uniforms. The Petitioner is alleged to have, infringed their copyright. Respondents sued Petitioner for violating their copyrights in five of their designs. The Petitioner (Star Athletica) also markets cheerleading uniforms. He was granted summary judgment from the district court, holding that the designs could not be conceptually or physically separated from the uniforms and were therefore ineligible for copyright protection. The sixth circuit reversed this, and it concluded that the graphics could be “identified separately” and were “capable of existing independently” of the uniform under Section 101.

Issues of the Case: Can graphics printed on the cheerleading uniform be protected by copyright law?

The contention of Parties:

Respondents:

·         The respondents claim that their designs are two-dimensional surface decorations that are always separable, even without a Section 101 analysis. They are implanted on articles or pieces with a helpful nature rather than the designs or graphics themselves being a substance with some valuable values.

Petitioners:

·         The Petitioner claims that a copyright cannot protect the designs or graphics since they are not helpful or helpful in an article in themselves. Even when they are separated from the cheerleading uniform, they retain the uniform outline and hence cannot be called a separate article or an independent article.

·         The Petitioner contends that by protecting surface designs, the court deters from the intention of congress to exclude industrial designs from copyright protection. He calls the respondent’s decoration as industrial decorations.

Judgement Held: The court holds the Sixth Court’s verdict; it states that graphics that were used by a company that manufactures cheerleading uniforms are copyrightable because they could be identified separately and are capable of existing independently of uniforms the company manufactured. The court finds that any feature or design or graphic which has been incorporated or implanted on the design or as the design of a helpful article is eligible for copyright protection if it can be perceived as two-dimensional works or design, which are separate from the helpful article itself and qualifies as a protectable “pictorial, graphical, or sculptural work,” either on its own or after being fixed in some other tangible medium of expression if they were imagined separately from the article into which they are incorporated.”. This aligns with section 101 of the copyright act.

Case Comment/ Analysis of Judgement:

Thomas, J., delivered the majority opinion. He was joined by Roberts, C.J., Alito, Sotomayor, and Kagan, JJ.,

Ginsburg, J., filed the concurring opinion, and Breyer, J., joined by Kennedy, J., filed the dissenting opinion in the case.

The main issue is that the respondent’s copyright has been infringed by the petitioners, who argue that the cheerleading uniform and the graphics implanted on them are the same articles that cannot be separated and protected by copyright. They pay more attention to the fact that one should consider the utility of a commodity rather than the identity of graphics and the clothes separately.

The District Court gave a summary judgement that favored the petitioners, but the Sixth Circuit reversed this judgement and stated that graphics are separate and capable of independent existence. The majority opinion applied the separability analysis (which is used to decide if a feature has a distinct identity from the cloth or article it is applied on). It stated that “on applying the proper test here (separability test), it is found that the surface decorations or graphics or features or designs which used or lay on the cheerleading uniforms of Varsity, are separate and therefore eligible for copyright protection. They came to this conclusion based on the following steps:

 Firstly, the decorations can be identified as features having “pictorial, graphic, or sculptural qualities” independent from the article. Secondly, if those decorations were separated from the uniforms and applied in another medium or theme, they would qualify as two-dimensional works of art under §101. And in case of imaginatively removing these decorations from the uniforms and applying them in another medium also would not replicate the uniform itself but generate a separate article of individual identity.”

The court has used the literal interpretation of the statute, which states that any “Pictorial” or “graphical” designs are used to denote the two-dimensional features, such as pictures, paintings, or drawings. Thereby to protect “pictorial, graphical, and sculptural works” implanted or applied into the “design of an article,” which is considered helpful by a prudent person.  The particular identity requirement is met if the decision-maker can look at the helpful article and spot some two-dimensional or three-dimensional elements with pictorial, graphic, or sculptural qualities. When separated from the graphical design, the cheerleading uniform holds a separate identity from the other.

The dissenting opinion was based on the logic that cheerleading uniforms are ineligible for copyright protection. When both cloth and the design are separated, the remaining product is only a blot of material, and the decorations retain the outline of a cheerleading costume. They further try to explain this by using the example of a two-dimensional painting that has the canvas’s shape. This opinion is based more on utility than the article’s objective, which contradicts the separability test, which focuses on the extracted part of the article and not its usefulness after it is separated from the graphics. The concurring opinion given by Justice Ginsburg is that he does not this there is a need to use the separability test here because the designs and graphics are copyrighted pictorials and techniques which are implanted in the valuable article. They are not helpful, but he also agrees that pictorial, sculptural, and graphical work is copyrightable under section 102 of the act. Hence, the varsity graphics are not themselves valuable articles and outside the purview of section 101 but “standalone” features that can get copyright protection and exclusivity in usage over valuable articles.

The final judgement has given way for much disagreement over the separability and identity issue, the two requirements of an article being perceived as a two or three-dimensional work of art which has a separate identity from the valuable article on which is implanted or incorporated and also qualify as a protectable “pictorial, graphic, or sculptural work” either on its own in its original form or after it are fixed in some other tangible medium of expression, whereby if it were imagined separately from the helpful article, it has some identity. In the instant case these requirements are fulfilled, the court stated that “graphical designs” were “separately identifiable” because both the design and cheerleading outfit were separate items: a uniform and a graphical design.

The identity of an article is being questioned here, not the utility, copyright is given to protect some design or feature specially made by one company, and the utility of that design or quality is not under the purview of the copyright act. It is not the function of a graphic implanted on a cloth to identify a person as a cheerleader, and hence neither is copyright granted for that reason. I agree with the interpretation and application of law that the court has used in this case.

The post Case Comment: Star Athletica v Varsity Brands appeared first on Legal Desire Media and Insights.

Well, this artistic curio which can even generate monetary value for the originator is dealt with the appropriate manner by the respective laws, primarily the intellectual property law and the law of contracts.

The IPR provide a wide framework of rights in law that protects the music created by the human mind, primarily including copyrights, trademarks, patents, trade secrets, Geographical Indicators etc. provides intangible work the same protection and recognition as one would to a tangible artifact.  For the purpose of this article, we will deal with the laws that cater to the various palates of musical realm very consistently.

Copyright

Sounds produced in India are preserved by a copyright; it protects a creator’s original dramatic, artistic, musical or literary work, these are mentioned in the Copyright Act, 1957 and supplemented by the Copyright Rules, 1958, govern the protection of Copyrights in India.

It mandates that a musical composer, or lyricist or any classical music, has the copyright of the original form, from the day they are produced, registration of the work is not necessary for obtaining the copyright. The Act provides a procedure to register the copyright in the official records or with the registrar of copyrights, which gives the right to the owner to sue in case of any infringement. The documents purporting to be entries and extracts from the register certified by the registrar of copyrights are admissible as evidence in all courts without proof of original[1] form. India being a member of the Berne Convention[2] and the Universal Copyright Convention[3], has passed the International Copyright Order, 1958 which enables any work published in India to be treated the same if it were published in any of the member countries of these conventions.

After getting the work registered, an author has several rights that he can avail to generate an income from his sound, Section 14 of the Act mandates, A copyright provides the creator the right to prohibit or allow any other person to reproduce his work in any other form than its original one or make use of it for live performances at concerts, restaurants, cafes, etc or distribute the work through various mediums or broadcast in other forms than its original one and lastly translate it into any other language as he wishes to.

The term of the copyright is for the lifetime of the owner and sixty years after his death and in case of more than one owner then sixty years after the death of the last owner.

Section 2(d)(ii), (vi) define who is an author and for our purposes, a composer or any person in relation to any literary, dramatic, musical or artistic work. Sub-clause (p) talks about musical work which consists of music and includes any graphic notation of such work but does not include any words or actions intended to be snug, spoken, or performed with the music.[4]

Section 17 determines, who is going to be regarded as the first owner of a copyrighted work. It provides that in case of an artistic, literary or dramatic work, by the author which is created in the course of employment by the proprietor or under a contract for the purposes of publication in newspaper, magazine or similar periodical, in the absence of any contrary provision will vest with the owner of the said proprietor but for all other purposes will vest with the author.

The 2012 Amendment to the act has brought in substantial changes, it has introduced several monetary rights for the authors of musical work that are incorporated in cinematography and sound recordings, it provides that the authors of any literary and musical works who are incorporated in films or sound recording and are not part of films, have the right to receive royalties equal to the royalties received by the person who has been assigned such rights for exploitation of their works. These rights cannot be assigned or waived off by the right holders and in case of any agreement to that effect, will be declared void. Scriptwriters/screenplay writers are also protected under these provisions. The act expressly mentions that the right of author cannot be affected by any agreement, he has the right to claim the royalties or any other consideration payable in the utilization of the work.

The act also provides certain Moral rights to the creators, these are described in Section 57, the act has ascertained certain special rights to the authors, which exist even after the assignment of the copyright. They are exercisable by the legal representatives of the author as well, these include Firstly, the right claim authorship of their work, Secondly, to restrain or claim damages in case of any distortion, mutilation, or any other modification in their work and Lastly, against anything done with the work, which is prejudicial to the honour or repute of the author.

The Act provides for a Performer’s right, which determines that whenever a performer engages in any performance, he has certain special rights pertaining to his performance and for this purpose a performer is not someone whose name is not mentioned in the credits of the film. The term of these rights is 50 years and starts from beginning of calendar year which starts after the year of performance. These rights are:

Firstly, to make a sound or visual recording of the performance and the right to reproduce it in any form other than its original one, or issue special copies of it to the public, or communicates it to the public or using it in a commercial way he wishes to generate money.

Secondly, to broadcast or communicate the performance in any manner and in case of the producer broadcasting the same, the performer has the right to receive royalties.

The Copyright Act provides both civil and criminal remedies in case of an infringement of Copyright.  Infringement of copyright is when any person uses or converts, any copyrighted work in a manner which he does not have the right to do or does not have the owners’ permission, he has violated the copyright and is liable under the various provisions of this act. The remedies include injunction, damages, seizure order and destruction of infringing articles. The acts which would be considered infringement are: Copying and issuing the work of the author for sale, or Performing, showing, playing copyrighted work without appropriate license, or Making any adaptation or doing abovementioned acts with such adaptation.

Further if any person with knowledge or reasonable grounds for having such knowledge, makes for sale or hire or sells or lets for hire or distributes either for the purpose of trade or for any prejudicial reason against the author or by way of trade exhibits in public or imports the work into India, is responsible for such infringement.

There are Copyright societies, with the primary function of preserving the rights of the owners by granting licenses to business and other persons, for the exploitation of these rights. These societies collect license fee on the behalf of the originators and then provide them royalties after deducting their own collection and expenses fees.

Section 33 of the Act mentions these societies,  

Firstly, the Indian Performing Rights Society or IPRS, which administers right in relation to musical and lyrical work, on behalf of its creators. This includes licenses given for business firms who allow singers to sing this music in their premises

Secondly, Phonographic Performance Limited or PPL, it administers the right to commercially exploit such creations or phonograms or sound recording on behalf of its owners. The licenses are issued to places like cafes, restaurants who wish to play music on their premises.

Geographical indicators  

The second type of IPR that protect music are the Geographical Indicators, the act governing them is called Geographical Indications of Goods (Registration and Protection) Act, 1999, which provides protection to any agricultural or natural or manufactured or handicraft or spice or foodstuff goods, which are one of a kind, they originate in a particular place and have quality, reputation or characteristic which are essentially linked or attributable to the geographic place of their origin.

In the musical industry, the classical instruments which are a part of our musical heritage, specially originated in various geographical locations of India and possess the distinct quality, reputation or characteristics attributes, linked to their place of origin are given the GI tag. In India until now only three instruments have been given this tag, under the handcraft category, they are Maddalam of Palakkad from Kerala, Bobbili Veena from Andhra Pradesh and the Thanjavur Veenai from Tamil Nadu.

The Rights conferred upon registration of these goods are- Firstly, the right to obtain relief in case of any infringement of the GI tag, Secondly, the exclusive right to use the GI tag in relation to the good. The term for a GI tag is ten years following which they can be renewed from time to time.

Trademark

Trademarks are the title, name or symbol or any combination of them, used by companies to project their goods to the market. Its motive is to make the goods distinguishable so that can be differentiated from substitute goods, it provides the consumer the clarity of the brand and the promise of authenticity. In India, the Trade Marks Act, 1999, which is in consonance with the TRIPS agreement, is used to register the Trademarks of businesses, in the Trade Marks registry.

In India, sound marks are also recognized as unconventional marks under the Act, India’s first sound mark was granted in August 18, 2008, to Sunnyvale, California-based firm yahoo’s three note yahoo yodel by the Delhi branch of Trademark Registry. The term “mark” includes a device, heading, brand, label, ticket name, word, letter, numeral shape of goods, packaging or combination of any of them. It provides any mark which is ‘graphically representable’ and is indicative of a trade connection with the owner, the protection of this act.

Trademark rules define ‘graphical representation’ as the projection of a trademark for goods or services, in paper form. They should be representable on paper either in sound form, wherein the sound is written or like depiction by oscillogram; spectrum, spectrogram, sonogram. In cases where it cannot be reduced to a written form, they should have a clearly identified, particular or specific sound, which should be appropriately described in the registry.

Even though India provides trademark to sounds there is a need for guidelines for description, recoding and protection of such sound.

Musical Composers or lyricist or producers use brand names and logos for the distribution as well as differentiation. For these purposes, they use Certification Marks, defined under Section 2(e) of the Act, it includes marks from a company that can provide a good which conforms to a certain level of established standards. The ‘ISO 9000’ is the internationally used standards that are widely accepted for grant of a Certification Mark.

Registration is mandatory to exercise the right of infringement of trademark. The infringement includes the similarity in the mark, identical or similar in some aspect, the goods/services should be similar to what are under the registered mark, the marks should be used to conduct business and, in a manner, so as to render its using being of a trademark.  

Law of Contract

The last law that protects the interest of musicians, musical composers, lyricists, sound managers etc., is the mercantile Law of Contract. It is necessary for all the basic contracts formed by the dealers in the industry to conduct business smoothly it includes, all form various contracts for the production of music, for the induction of band members or transfer of rights of lyrics or sound or with collection societies and publishers or for recording and distribution of the music, for guest performances and remake or remixes or contract formed with the respective agencies and management who conduct your business or act as your agent.

For the purposes of such contracts, one needs to follow the procedure established in the Indian Contract Act, 1872. The basic elements of acceptance, promise, consideration etc need to be followed according to the provisions mentioned in the act.

Conclusion

The various laws mentioned above protect a wide spectrum of rights pertaining to the music industry. They provide a safe haven for musicians to let their imaginations run wild. The law is not exhaustive and there is scope for new types of musical creations to adjust and be protected as well. The current laws aptly fulfil the purpose of protecting the rights of creators and authors of music, there is scope for improvement which will come eventually with trial and error.

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