76777797 IPR Issues in Digital Media and Digital Commerce Ashish Chandra

8/12/2019 76777797 IPR Issues in Digital Media and Digital Commerce Ashish Chandra

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Digital Media & Digital

CommerceDec 15, 2011

Ashish Chandra


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Opening Statement

This presentation is intended todiscuss e-commerce, media and

internet law and technologywith an entrepreneurial

approach through emphasizing

the interaction between tech,business and law

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Why is everyone so excited

about digital? (The India Story)

800m + mobile usersshifting trend

to more data consumption on mobile

120m + internet usersIndia third

largest with a mere 10% adoption rate National Broadband Plan estimate

broadband users @ 160m+ by 2016

CAGR of 39% in Digital Advertisingduring 2007-10 making it the fastest

growing advertising market in India (asper FICCI KPMG Indian Media and Entertainment

Industry Report 2011)



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Why is everyone so excited about

digital? (The India Story continues) Adoption of 3G & 4G technologies for data

transfer.

Successful 3G and BWA auctions fetches Indian

Govt. more than Rs. 1 lakh crore (approx US$

22.2 billion)its a serious business

PPLs revenue from mobile and digital rights

itself grew from a mere Rs. 7 crore in 2004-05 to

Rs. 138 crore in 2009-10a phenomenal 2000%

growth in just 6 years

eCommerce valuation gone above the roof

Expected shift in the manner of media

consumption and goods buying by urban and on

the move consumer 4 2011, Ashish Chandra


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What IPRs are involved in this

discussion??

Trademark

Copyrights

Trade Secrets

Patents Contracts

Data Privacy

Common law rights

As a true IP lawyer, we should analyze and learn how a

company develops business model, deploys technology

and then uses IP laws and contract laws, to successfully

execute its business plans. 5 2011, Ashish Chandra


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Creating & protecting IP in Global

Village Target Indians / people abroad

Owning brand-names, copyrights and

protecting misuse of content

Territorial restrictions and breaching pricingmodel and movement of goods

Targeting India

One of the largest consumption market

Key market for English language content

Impact of each form of IP includes study of domestic as well as

international IP laws



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What we will discuss?

Digital media & IPRs

Digital commerce & IPRs

Digital Contracts Competition law issues

New laws to watch out for



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Digital Media & IPRs



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Digital distribution of Media

Cleaner: Self

Content Aggregators

Third party service providers / OEMs Ifs and Buts:

P2P Networks

Social Media Networks Illegal:

Breaking DRMs and unauthorized retransmissions

Copypaste - upload 9 2011, Ashish Chandra


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MVAS eco-system


(1) Content providerTelcoEnd User

(On deck & off deck model & SMS / IVR

based)

(2) Content providercontent

aggregatorTelcoEnd User (On deck

& off deck model & SMS / IVR based)(3) Content providerContent

aggregatorOEMsTelco / End User

(typically through Mobile Apps)

(4) Content providerEnd User (typically

through WAP Sites)

(5) Content providerOEMsEnd User

(for eg: Star Plus app on iPhone / iPad)


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Monetization of Media

Text & graphics Advertisements Self procured

Network Advts

Targeted Advts

In-Video Advts

Pre/mid/post scroll

Subscription based Through Telcos

Enterprise valuation11 2011, Ashish Chandra


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What right does content owner

enjoys?? Copyright owners enjoy multiple distinct rights,

including:

Reproduction

Distribution Public performance

Derivative works

Conversion of 2D to 3D and viceversa Personality rights

Publicity rights



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Digital MediaIPR issues

Extent of extension of rights

Means of diffusion

Modes of display

DRM v fair use Technological standardsopen v closed

Broadcast Reproduction Rights (signal or beyond)

Performers rights Other third party rights in overall packaged media

Compulsory licensing

Piracy13 2011, Ashish Chandra


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Why IP issues in media are

complicated? Eg of Music royalty

chart cour tesy of Music Reports Inc, Woodland Hil ls, CA, www.music reports.com 14 2011, Ashish Chandra


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Protecting Media o/s India

WIPO treaties

DMCA and its equivalents in other countries

Extra territorial jurisdiction of IT Act

Technology tools Website blocking under IT Act

Proposed WIPO Broadcasting / Webcasting

treaty Music royalties to international societies

Cloud computing



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Intermediary Liability - Media

Comparison: YouTube v Viacom (US judgment)

Super Cassette Industries (T-Series) v MySpace (Delhi High

Court)

IT Act (sec 79 r/w sec 81)

Copyrights (Amendment) Bill, 2011

DMCA

Is it for safeguarding innocent or safe-harbour forinfringers??

Making ISPs accountable:

Current ISP guidelines

Graduated response (three strike principle) 16 2011, Ashish Chandra


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Digital Commerce & IPRs



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Types of Digital Commerce

B2C

B2B

C2C

Social buying Group buying

Social Media buying

Search engine buying Television home shopping

IVR based shopping



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Digital CommerceIPR issues

Parallel import Parallel export

Breach of authorized distribution

channels

Data privacy and data protection

Use of third party trademarks

Providing a venue for violation of law



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Intermediary Liability - Commerce

Section 79 of IT Act Course of conductimmunity available only if

Mere access to a communication system

Does not initiate the transmission

Does not select the receiver of the transmission

Does not select or modify the information contained in the transmission

Observes Due Diligence

Observes guidelines prescribed by Central govt.

Malafide commissionsimmunity not available

Conspired, Abetted, Aided or Induced

Omissionsimmunity not available if

Fails expeditiously to remove or disable access to the infringing / violating

transmission on:

Receiving actual knowledge of the unlawful act

Being notified of such unlawful act by Central Government or its agency

Section 104 of Trademarks Act

Section 51 Copyrights Act 20 2011, Ashish Chandra


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Intermediary Liability - Commerce

Baazee.com / eBay case Criminal liability of intermediary and officers

under IPC and IT Act

Ramkumar Patent case Contributory liability of intermediary

Sanjay Kr. Kedia v Narcotics Control Bureau

Abuse of safe harbour



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Digital Contracts



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Types of Internet contracts

Click wrap Standard contracts & non-negotiable

I Accept / Continue

Browse wrap

Standard terms and conditions & non-negotiable

Acceptance by way of course of conduct Email contracts

Offer through emails

Acceptance of offer through emails

SMS based contracts

Send message to a keyword (i.e. STAR) or numeric short code (i.e. 57827) Tele-shopping / TV shopping

Reference to terms and conditions in a specified hyperlink

Generic description of goods on the media

Acceptance through placement of order

2011, Ashish Chandra


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Digital Contracts Essential elements of contract:

Offer & receipt of offer

Acceptance & receipt of acceptance

Record of instrument creating the contract (preferably for evidence purpose)

Provisions in IT Act

Section 11Attribution of electronic record (who has made the offer & who hascommunicated the acceptance?)

Section 12Acknowledgement of receipt (whether the offer & acceptance wasreceived and acknowledged?)

Section 13Time and place of dispatch (enters computer resource outside the

control of originator)and receipt (at designated computer resource, if specified,or general computer resource, if not specified)

How IT Act could meet the requirements of contract:

Offer & receipt of offerSection 11 read with Section 13

Acceptance & receipt of acceptanceSection 12 read with Section 13

Electronic Record as evidenceIndian Evidence Act 2011, Ashish Chandra


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Issues to be considered

enforcement of e-Contracts Fair terms:You cant have your cake and eat

it too!!

Reasonable notice:Avoid hide and seek!!

Upfront intent to be bound:Caveat Emptor!!

Changes:With prior notice and with consent

(opt out)!!

Keep copies:Facility to print and keep the

copy!!

Date, time & place:Website should record

the date & time and IP Address of the person

accepting the e-contracts



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Jurisdiction for enforcement International: Key Principles

Choice of jurisdiction in contract

Territory principle (place of business)

Nationality principle (head office)

Effect principle

Minimum contact principle

Domestic:Key Principles Civil Procedure Code read with Section 13 IT Act

Supreme Court in Bhagwandas Goverdhandas Kedia v. M/s Girdharlal

Parshottamdas and Co.: 1966 SCC 543& andA.B.C. Laminart Pvt. Ltd and

Another: 1989 SC 1239

the normal rule applicable to postal communications would not beapplicable to communications which are instantaneous as in the case of a

telephone conversation or a telex message.

when a contract comes into being in cases where the communications are

exchanged by post and communications are exchanged over the telephone

or telex the contract is only complete when the acceptance is received by

the offerer and the contract is made at the place where the acceptance isreceived



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Competition Law issues



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Competition law issues

- conflict or compliment

IPR lawsself sustained code for anti-

competition? Statutory License

Compulsory License

Fair Use

Tariff determination

Sector specific regulations eg: Telecom & Broadcasting: TRAI

Medicines: Drug controller of India



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- conflict or compliment Usual restrictions by IPR owners Refusal to deal

Patent pooling & cross licensing (similar to

copyright societies)

Differential terms of sale of same product Different prices for different territories

Closed technological standards

Cartelization v. collective bargaining

Excessive rights management

Tie-in sales

Non Compete arrangements



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Section 3Anti-competitiveagreements

Exception to IPR owners for:

Retraining any infringement

Impose reasonable conditions

Section 4Abuse of dominant position

IPR creates monopoly

Puts IPR owner into a dominant position

Trigger point is abuse of dominant

position


- conflict or compliment

Very important to define and understand relevant

market in IP intensive industry 30 2011, Ashish Chandra


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New laws to watch out for

Copyright (Amendment) Bill, 2011 Proposed - Utility Patents Bill, 2011

FDI in retail (including retail eCommerce)

Comprehensive MVAS guidelines by TRAI Proposed Mobile TV guidelines

WIPO Broadcasting Treaty

RBI notifications under PSSA on internet and mobile

payments

Proposed amendments to PRB Act

Internet content regulation

Network neutrality 31 2011, Ashish Chandra


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Ashish Chandra:

Email: [email protected]

mailto:[email protected]:[email protected]

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76777797 IPR Issues in Digital Media and Digital Commerce Ashish Chandra