NAME- TANUJ NATH RAJE

ID. NO. CLH47_19

ANSWERSHEET OF
PAPER III - 1.3 IPR in Cyber Space

ANSWER 1

Standardisation
Standards are the most important facet of our lives it influence almost
each and everything the food we eat ,travel,work,means of
communication everything has been developed in compliance with
mandatory standards.
Basically the standards are generally set of the particular
characteristics and qualities that describe the features of that particular
product, process, services, interface or material.

Most of the Standards are set and created by Standard setting

Organization which involves the voluntary participation and
collaboration of different type of entities like government agencies,
individual, academic institutions and research laboratories.

Standard setting, the process of determining a common set of

characteristics for a good or service, often promotes competition to
the benefit of consumers.
Standards are particularly important in the Information and
Communication Technologies (ICT) sector as well because they allow
the products to interoperate and therefore make their networks more
and more valuable. However the ICT standards also raise the
challenges because they mostly rely on patented technologies. A
tension arises because patents protect the owner’s exclusionary and
owner right to exploit an innovation, while standards are intended for
widespread public use.

SEP
STANDARD ESSENTIAL PATENT

A standard-essential patent (SEP) is the patent that claims that an

invention must be used to complied with the technical standards
Standards organizations, therefore it requires the members to disclose
and grant licenses to their patents according to the cover standards
that the organization is developing.

CHALLENEGES IN SETTING STANDARD PROCESS IN IPR

Patents & Standards

It basically encourages investment in innovation and allows
technology developers to disclose/share their ideas openly and early.
It also enables technical specifications to be promulgated - benefits of
the industry and public Standards often includes patented technology
Challenges in this

1) The implementation of standard requires use of patented

technology anything less than the standards might not be
considered.
2) Patents creates an exclusive right which entitles owner to
exclude others
3) Patent owner have the market of products in the market power they
may control the flow
4) If some kind of innovation has set any standards then the other
innovation like that have to maintain that standard as well.

Copyright & Standards

Many copyright laws require the remedies against circumvention of

the technical measures, protection of rights management information,
i.e. Digital rights management
The Interoperable Digital rights management technologies are needed
for the growth of the global marketplace for legitimate delivery of
digital content into the market as per require standards.
Lack of interoperable Digital rights management contributes to
unauthorized use of digital copyright content, including the piracy of
the content
Standardization is the best and suitable optimal means to achieve
Digital rights management interoperability
Nowdays Recent copyright legislation and policy supports DRM
standardization as well.

Challenges

1) Open source software’s (OSS) is collaboratively developed and

licensed under the standardisation
2) Open standards are technical specifications that meet criteria of
openness in their creation, implementation and use, as defined by
SSOs but it is not possible every time to meet the set standards
which should be definitely need to be seen.

3) There are also Possible conflict between OS licenses and IPR

policies of SSOs (RAND, FRAND), but then also market shows
some degree of co-existence
4) Further study to be required on options available to OS
developers to implement open standards consistent with both OS
licenses and SSO IPR policies

Issues and challenges in SEP (Standard essential Patent)

1) Patent Holdup

Once a patent is adopted as a set standard and achieves commercial

acceptance, it gets 'locked- in'. It is necessary for the manufacturer to
use the same otherwise his product would be incompatible with other
companies' products and hence unmarketable. because the licensee
does not have alternatives to the same technology to use in the other
way.

In the cases of Micromax and Intex the CCI said that hold-up can
subvert the competitive process of choosing among technologies and
undermine the integrity of standard-setting activities. Ultimately, the
high costs of such patents get transferred to the final consumers and
that will be the problem for the customers.

2) Royalty Base
The amount of a royalty amount depends on the correct selection of
the royalty base. The SEP holders impose the royalty rate on the sale
price of the final product rather than only on the component which
comprises the infringed patent. This means even if SEP is used in a
single component of a multi component product, the implementer
would be liable to pay the royalty on the components which do not
include the SEP
In Virnetx Inc. v. Cisco Systems the US Court of Appeals for the
Federal Circuit held that the royalty base must be closely tied to the
claimed invention rather than the entire value of the product.

3) Royalty Stacking

Royalty stacking is the situation where royalties are layered

upon each other leading to a higher aggregate royalty. The
higher the bidder higher the royalty This happens genreally
when the different SEP holder imposes similar type of royalties
on different components of the same multi component products
and leading the royalties to exceed the total product price.

This concern was raised by the CCI in the cases of Micromax

and Intex wherein the Delhi High Court had ordered Micromax
to pay royalty to Ericsson on the basis of net sale price of the
phone rather than the value of technology used in the chipset
incorporated in the phone which was said to be infringed.

4. Availability of Injunctive relief

Threat of injunction becomes a powerful weapon when used by
a SEP holder for enforcing their royalty rates in such cases that
the SEP implementer would think that accepting the
unreasonable royalty rates would be the less risky than curbing
an action of infringement. Such an action is also considered to
be the abusive of dominant position and hence such acts are a
violation of competition laws.

Answer 2

COMPARITIVE NOTE ON PATENT AND COPYRIGHT

PROTECTION

PATENT PROTECTION

Patents are the intellectual property rights that are granted to

inventions. Materials which are patentable include industrial
processes, machines, chemical compositions, and manufactured
commodities.
 Patents belongs to the inventor, or to the individual or
organization, that gives the rights Patent owners may license it
or enables others to make use of their invention, or they may sell
it. Patentable inventions are requires certain conditions.
They must be unique and new and must not been published by
anyone else previously. Therefore, if someone wants to register
a pattern then he must not publicize his invention beforehand.

Types of Protection & Works in Patent

Protection of inventions that are novel, original and has industrial
utility.

Validity and Reach

Validity for the Patent is 20 years starting from the day the
application is first made. It is also a territorial rights and therefore it is
effective only within the territory of India. Separate patents required
to be filed for each country where protection is required.

Secures
Patent secures inventions that are useful for the world and has some
use. E.g. New invention in pharmaceutical industry.
Provisional Application Requirement
A provisional application can be filed which gets a 12 months of time
to file a complete specification, and a priority date claim.
Copyright Protection
Copyrights is created to protect the ownership of artistic works, ,
literary, musical and theatrical creations. Intellectual goods which are
protected by the copyrights includes poetry, songs, motion.music,
pictures, novels, paintings and even computer software and digital
creations.
Ideas can never be copyrighted, however the tangible form of the idea
can be copyrighted. In artistic works, copyright generally lasts for the
duration of the author’s life in addition to 70 years following their
death.
Types of Protection in Copyright
1) Types of Protection & Works
Protection of original creative expressions like literary works, artistic
works, dramatic works etc.
2) Validity and Reach
Valid for the life time of the author + 60 years after his/her death.
Protection available in most of the countries in the world.
Secures
Copyright secures Creative or intellectual creations.

3) Right comes into Existence

Exclusive rights are over the copyright are created the moment the
authorship creates the work.
Now coming to the case of the friend who have make a method to
calculate targets in a cricket match due to rain disruptions
According to Sections 3 and 4 of the Indian Patents Act, 1970
specifically state exclusions to what can be patented in India and
patent is always given for an invention and this method or
formula is not an invention it has been developed this is an act of
mental skills so it is not patentable moreover
there are certain conditions for to get patented

Novelty which means the information that have been written in the
specification of the patent application (subject matter) is not
published or know to or available to public in India or elsewhere
before the date of filing of the patent. And this case it has been
published through the blog and known to the public.
An inventive step: A subject matter in patent application having
inventive step means that the invention disclosed is not obvious to a
person skilled in the art. The invention should not be obvious to
people who are form the same field of invention.
Industrial application: As the name suggest, invention to be
patented should have a utility that is it is capable of being made and
used in an industry.

The method of calculating the Cricket match scores does not come
under the criteria of copyright because

Copyright law does not protect ideas, methods, or systems. Copyright

protection is therefore not available for ideas or procedures for doing,
making, or
building things; scientific or technical methods or discoveries;
business operations or procedures; mathematical principles; formulas
or algorithms; or any
Copyrights generally do the protection of the following categories of
works:
1) Original literary, dramatic, musical and artistic works.
2)Cinematograph films. Sound recordings.
3) Orginal ideas and expression to do something.

According to Section 14 of Indian Copyright Act 1957 protects

(a) in the case of a literary, dramatic or musical work, not being a
computer programme,—
(i) to reproduce the work in any material form including the storing of
it in any medium by electronic
means;
(ii) to issue copies of the work to the public not being copies already
in circulation;
(iii) to perform the work in public, or communicate it to the public;
(iv) to make any cinematograph film or sound recording in respect of
the work;
(v) to make any translation of the work;
(vi) to make any adaptation of the work;
(vii) to do, in relation to a translation or an adaptation of the work,
any of the acts specified in relation to
the work.
 ANSWER 3

UNIVERSAL DISPUTE RESOLUTION POLICY

The Uniform Domain-Name Dispute-Resolution Policy (UDRP) is

the process which was established by Internet Corporation for the
Assigned Names and Numbers (ICANN) for a resolution of the
disputes regarding the registrations of internet domain names. The
UDRP currently applies to all generic top level domains (.com,
.net, .org, etc.

A complainant in a UDRP proceeding must establish three

elements to succeed:
1) The domain name should be identical or confusingly similar to a
trademark or service mark in which the complainant has its
rights.

2) The registrant does not have any rights or legitimate interests in

the domain names.
3) The domain name has been registered already and the domain
name is being used in "bad faith “or gaining any financial profit
As in this case Sri Ram Company has domain rights but ABC
Marketing group is infringing their rights.
1. Purpose.
The Uniform Domain Name Dispute Resolution Policy is been
adopted by the Internet Corporation for Assigned Names which sets
forth the terms and conditions in connection with a dispute between
one and any other party.

2. Representations
By applying to register the domain name, or by asking to maintain or
renew the domain name registration, it represent and warrant to that
(a) The statements that made Registration Agreement which are
complete and accurate;
(b) To the knowledge, the registration of the domain name will not
infringe and violate the rights of any third party;
(c) The domain name is not registered for any unlawful purpose
(d) It will not be knowingly use the domain name in violation of any
applicable laws or regulations. It is the registered user responsibility
to determine whether your domain name registration infringes or
violates someone else's rights.

3) Cancellations, Transfers, and Changes.

The domain name will be cancelled or transferred or otherwise it will
make changes to the domain name registrations under the following
circumstances:

a) Receipt of an order from a court or arbitral tribunal, in each case of

competent jurisdiction, requiring such action; and/or
b). Receipt of a decision of an Administrative Panel which requires
such action in any administrative proceeding to which a party and
which was conducted under this Policy or a later version of this
Policy adopted by ICANN

. 4) Consolidation.
In the event of multiple disputes between a party and a complainant
party either may file petition to consolidate the disputes before a
single Administrative Panel. This petition canbe made to the first
Administrative Panel appointed to hear a pending dispute between the
parties. This Administrative Panel may consolidate before it any or all
such disputes in its sole discretion, provided that the disputes being
consolidated are governed by this Policy or a later version of this
Policy adopted by ICANN.

5) Fees. All fees charged by a Provider in lieu of connection with any

dispute before the Administrative Panel pursuant to these Policies
shall be paid by the complainant, except in the cases where they elect
to expand the Administrative Panel from their one to three panellists a

6) Involvement in Administrative Proceedings. No party will

participate in the administration or the conduct of any proceeding
before the Administrative Panel. In addition they will not be liable
as a result of any decisions rendered by the Administrative Panel.
7). Notification and Publication. The Provider shall notify that of
any decision made by an Administrative Panel with respect to a
domain name that have been registered with any party . All decisions
under this Policy will be published full over on the Internet, except
when an Administrative Panel determines in an exceptional case
where there is high confidential matter.

7) Availability of Court Proceedings.

The mandatory administrative proceeding requirements shall not
be prevent either or the complainant from submitting the dispute to
a court of competent jurisdiction for independent resolution before
such mandatory administrative proceeding is commenced or after
such proceeding is concluded. If the Administrative Panel decides
that the domain name of a party registration should be cancelled or
transferred then it have to wait ten (10) business after that it
should be informed by the applicable Provider of the
Administrative Panel's decision before implementing that decision.
satisfactory to us that your lawsuit has been dismissed or
withdrawn; or (iii) a copy of an order from such court dismissing
your lawsuit or ordering that you do not have the right to continue
to use your domain name.

8) Transfers During a Dispute.

Transfers of a Domain Name to a New Holder. A party may not
transfer the domain name registration to another holder during the
pending administrative proceeding brought pursuant or for a period of
fifteen (15) business days as observed in the location principal place
of business after such proceeding is concluded; then during a pending
court proceeding or arbitration commenced regarding the domain
name unless the party to whom the domain name registration is being
transferred agrees in writing, to be bound by the decision of the court
or arbitrator. That court reserves the right to cancel any transfer of a
domain names registration to another holder that is made in violation.

9) Changing Registrars.
Nobody can transfer the domain name registration to another
registrar during a pending of administrative proceeding brought or
for a period of fifteen (15) business days (as observed in the
location of our principal place of business after such proceeding is
concluded. No party may transfer administration of their domain
name registration to another registrar during a pending court action
or arbitration, provided that the domain name they have registered
with shall continue to be the subject to the proceedings
commenced against in accordance with the terms of the Policy. In
the event the transfer a domain name registerd during the
pendency of a court action or arbitration, such dispute shall remain
subject to the domain name dispute policy of the registrar from
which the domain name registration was transferred.

Answer 4

As we see the case of Daily Sunrise vs. Herald

There is no infringement of Copyright law
First of all there exists no copyright in the newspapers or the facts or
any information, because the same is neither created nor have been
originated with the author of any work it is based on real fact that are
happening around our surroundings which embodies these facts.
Secondly, The Discovery of facts cannot be given the protection
under copyright law.
Third, the protection of copyright is always afforded only when the
fact or event or any information or the material is applied to create a
form of work, literary or otherwise.
When there is no copyright in the news, then there can be no
infringement of an original ‘idea’ either, copyright may exist in the
manner of expressing it.
The position of any edited piece of work which had been an
established amount of skill, labor and capital put as inputs would
amount to innovative thoughts and creation of the editor.
Copyrighted material are always what is created by the author by his
own skill, labor and investment of capital. Therefore, it is necessary to
perceive the labor, skill and capital invested in the expression of the
work and not the fact itself.
Fourth, law of Copyright in India only protects original and creative
expressions of ideas and not ideas themselves. As held by the
Supreme Court of India “There can be no copyright in an idea, subject
matter, themes, plots or historical or legendary facts and violation of
the copyright in such cases is confined to the form, manner

Fifth, The news elements in the information’s reporting current

events contained in the literary productions is not the creation of the
writers, but is a report of matters that happens in our surroundings

Sixth and the last reason is that Herald is not earning money or
gaining profits he is giving free E newspaper to the register users at
free of cost.
Trademark Infringement
There is an infringement related to Trademark.

The Trademarks Act, 1999 is the legislation that protects the

trademarks in India. The Act lays down the rules of dealing with
registration, protection and penalties against infringement regarding
the trademarks. Trademarks are given the status of intellectual
property across the globe.

Trademark infringement is an unauthorised usage of a mark that is

identical or deceptively similar to a registered trademark. The term
deceptively similar here generally means that when an average
consumer looks at the mark he is likely to confuse of the origin of the
goods or services. Confusion must be created by the trademark.

As we can see in this case Herald used the newspaper of Daily sunrise
by giving the newspaper in his own website herald has not taken any
permission from the newspaper company to use their trademark which
is an infringement under section 29(1) of Trademarks Act, 1999
29. Infringement of registered trademarks.—
(1) A registered trade mark is infringed by a person who, not being a
registered proprietor or a person using by way of permitted use, uses
in the course of trade, a mark which is identical with, or deceptively
similar to, the trade mark in relation to goods or services in respect of
which the trade mark is registered and in such manner as to render the
use of the mark likely to be taken as being used as a trade mark.
Herald is liable for the Act committed and penalties under Trademark
infringement are applicable on him. The newspaper company can
demand for Permanent injunction against the Herald and his company

To grant a permanent injunction a Triple identity test should be

satisfied .

1) Use of identical or deceptively similar trademark.

Yes in this case Herald used the same trademark of newspaper
company.

2) Use of trademark in relation to identical goods.

Yes in both the case newspaper were served by both newspaper
company and Herald

3) Use of trademark in relation to identical goods having identical

trade channels.