Year: 2016

This paper will explore in suitable depth, §65A which has introduced anticircumvention provisions into the Indian copyright law. It will begin with an introduction into the relevant terminology and scope of DRMs, TPMs and RMIs, and the typical issues associated with the introduction of anti-circumvention laws. After identifying and examining these issues, this paper will undertake a legal analysis of the problematic phrases in §65A, namely, ‘effective’, ‘purpose not expressly prohibited’, ‘intention’ etc; and examine whether the Copyright (Amendment) Act, 2012 suitably addresses the issues that typically arise from the introduction of anti-circumvention laws. Next, the liability regime itself and the wisdom in introducing criminal penalties as opposed to civil statutory damages (paid to copyright owners) are discussed. This is followed by examining the politics associated with the Amendment including the lack of any international obligation to enact the same. Further, pressure groups and representations made by different stakeholders in the Standing Committee Report are given due consideration to understand the differing interests at stake. Finally, the paper undertakes an analysis of whether the balancing act sought to be achieved between industry and consumer interests has been realised through this Amendment

It is a widely acknowledged reality that the Supreme Court today faces a crisis in the form of a severely over-burdened docket. This paper argues that, while the existence of the problem is well known, its genesis, underlying causes and broader impact are significantly misunderstood. It is in that sense that the crisis remains an unseen one. A core claim of the paper is that the burden on the Court is neither a historical inevitability nor primarily a resource-centric problem. Rather, it is the product of conscious choices made over a period of time by judges of the Court, choices which were shaped and constrained in significant ways by other important factors, but which nonetheless remained conscious choices. This trend is deeply troubling for many reasons, and calls for an urgent exploration of possible models for reform.

Europe has to face the triple challenge of sovereign solvency, liquidity problems and the repercussions of the banking crisis. The Euro zone is pressurised into taking more decisive action on the institutional deficiencies of the European Monetary Union. This paper reviews the European trajectory from makeshift to more comprehensive strategies with resecue mechanisms for countries in distress, including an assessment of the role of the European Central Bank and the conflicting interests of the Member States. A section on the Spanish Recapitalisation Schemes of 2012 and the EU’s policies on recapitalising banks demonstrates the interface between the sovereign debt and banking crises.

This paper looks at the institution of the independent director as a corporate governance tool, and assesses its effectiveness in the Indian context. This analysis assumes significance in light of the fact that the independent director, i.e., a company director who has no ties with the company’s management, emerged in the US against a completely different backdrop, and to tackle a completely different problem than what afflicts Indian listed companies. The problem that the independent director was conceived to tackle in the US is the agency problem between the management and the shareholders resulting from a dispersed shareholding pattern. However the corporate setting in India is marked by the presence of a controlling shareholder, and hence the major corporate governance problem is the conflict between the majority shareholders (who often control the management) and the minority shareholders. This paper finds that while the institution might not have been conceived with this problem in mind, it can nonetheless be adapted sufficiently. The purpose of this paper is to examine whether this adaptation has taken place, and if not what further steps are required at the regulatory or legislative level. In this context, I have made a number of suggestions which I hope will make the independent director a more effective tool.

This paper seeks to assess whether the safe harbor provisions for Internet intermediaries as enacted in the Information Technology Act, 2000 and the amended Copyright Act, 1957, reflect a correct balance between content owners and users. The paper begins by tracing the history of the Internet in its Web 1.0 and 2.0 avatars. Further, it examines how the current Internet architecture has facilitated e-commerce transactions as well as social speech. Moreover, the paper discusses whether the standards of liability under the Information Technology Act for intermediaries reflect an internationally compatible ‘notice-and-take-down-regime’, thereby avoiding a situation which would effectively result in shooting the messenger. Moreover, it examines whether the standards of liability under the Indian Copyright Act, 1957 are consistent with those under the Information Technology Act, 2000. Lastly, it examines whether the Indian laws and judicial trends strike a fair and correct balance between right owners and users.

The Copyright (Amendment) Act 2012 resulted, in part, from concerted lobbying by composers/lyricists to foster a more equitable sharing of royalties by Bollywood producers and others in the entertainment business. The efforts resulted in the recognition of their right to equitable sharing in the royalties, primarily in the form of amendments to § 17, §18, and §19. This paper seeks to assess these provisions and their likely impact. By highlighting the existing lacunae in law, the author posits possible interpretations that would aid in the realization of the objectives of the amended provisions to a considerable extent. Towards that end, the inter-relation between these provisions is also elaborated on. The pivotal role of the new proviso in § 33(1) is also discussed. The paper also assesses whether the application of these amended provisions will be retrospective, prospective, or retroactive in nature

This paper is based on comparative constitutional law, with significant emphasis on the judicial decisions and laws formulated by the legislature in India. It discusses the path-breaking developments in the Indian legal system which strike at the root of the primitive notion that traditional ethnology and democracy are integrally antithetical to each other. The fact that the Indian Constitution provides for group as well as individual rights is highlighted as a revolutionary feature of India’s democracy which according to many legal scholars defies the orthodox notion of western constitutionalism. The paper then proceeds to evaluate the developments in constitutional law in India from three perspectives. Firstly, it appreciates the pragmatic approach adopted by the Constituent Assembly during the framing of the Constitution wherein the makers anticipated the post-modern approach of the current law makers. Secondly, the judicial activism of the Supreme Court is discussed which empowers the judges to engage in comparative law and develop new and original constitutional principles such as the ‘basic structure doctrine’ so as to expand the protective umbrella of the Indian Constitution for its citizens. Lastly, the paper discusses the practice of internalising international principles and control measures into our body of national legislations and institutions, particularly in the field of environmental law.

A collective life in society is characterized by two constituent elements – rights and trust. In analysing these two elements, it is important to examine the balance existing between them. Despite their contrasting roles in society, the dialectical relationship between rights and trust is best understood when they are viewed as complementary to one another. While a framework of rights is necessary to instil a sense of deserved entitlement in people, what is instrumental for the effective realization of rights is the recognition of such entitlement within groups of individuals; such recognition being factored in by the mutual respect forged by trust. Through the course of this paper, the author seeks to locate this dialectical relationship within societal institutions, examining how the interface between rights and trust serves as a determining factor for the failure or success of these institutions. The paper commences with viewing the importance of rights in the social scenario, highlighting the shift in the paradigm of the language of rights. It then looks at the relevance of the fiduciary component, establishing that trust, unlike rights, is not a legal mandate but rather a moral one which is implicit and not codified, and it is this moral mandate that regulates various social transactions that take place in the absence of rights. The paper culminates with analysing the interface between rights and trust within the framework of institutions such as family and academic institutions, in order to illustrate that how we understand the importance of the balance between the two, is what determines the success or failure of such institutions

I consider it a great privilege and honour to speak in memory of D.D. Basu. Justice M.N. Venkatachalaiah and Mr. K.K. Venugopal, who delivered lectures in previous years in the same forum, have elaborately referred to the life and works of D.D. Basu. Thus to avoid redundancy, I will refrain from reiterating what they have already elucidated on. I have not known D.D. Basu personally, but I have great admiration for the commentaries he has offered on various subjects in his classics, particularly on Constitutional Law. I was intrigued by his work on ‘Comparative Constitutional Law’ in which he makes thought provoking comments on important decisions of the Supreme Court such as A.D.M., Jabalpur v. S.S. Shukla (‘Habeas Corpus case’), Kesavananda Bharati v. State of Kerala ‘Kesavananda Bharati case’), and Indira Gandhi v. Raj Narain. He did not get influenced by the populist views on issues dealt with in the Habeas Corpus case. He criticizes both the majority and minority opinions in the first two cases, and the manner in which the latter was decided. He opines that the majority in the Habeas Corpus case ought to have taken note of the fact that Article 226 had not been suspended, and therefore judicial review on matters other than Article 21 could have been invoked in the ordinary course of judicial review. He feels that notwithstanding Justice Khanna’s heroic attempt to save the rights of the citizens to move for habeas corpus, his reasoning was based on aspects ultra vires the Constitution of India. Furthermore, he goes on to observe that in the presence of a written Constitution, taking note of situations outside the Constitution will not be sound in law.

The Copyright (Amendment) Act, 2012 stands to correct the legislative imbalance of rights assigned to composers and lyricists and is a path-breaking remedy for the copyright regime in India. The build-up to the amendment demonstrates the undying efforts of the otherwise passive composers and lyricists. In order to understand the context of the amendment and the manner in which these new provisions are likely to be interpreted by courts, the paper attempts to appreciate Mr. Javed Akhtar’s contribution to the movement and describes the long, contentious history between authors and music labels and the nature of their conflict. The panacea was sought in the form of a legislative amendment addressing the concerns of the composers and lyricists for the purpose of protecting their rights. These include protecting the composers and lyricist from unfair contracts through a statutory right to remuneration, protection from the assignment of copyrights in future technologies by the authors and a change in the manner in which copyright societies were administered, as they were primarily controlled by the music labels. However, the extent to which the amendments will succeed in achieving its objectives would largely depend upon the collective efforts of the authors and the judiciary alike.