Edition 9

JOURNAL OF INNOVATION, COMPETITION
& INFORMATION LAW

Quarterly Law Journal | Harbinger Publishing
EDITION IX
December 2021
9 JICIL (2) 2021
Nayanikaa Shukla Publishing Editor
Vedangini Bisht Editor-in-Chief

Disclaimer: Views expressed in these articles published in the Journal are solely of the
Author(s) and do not reflect views of the Publisher, the Editorial Board, Board of Advisors
or the Journal in any manner.
Cite as: 9, JICIL (2) 2021
Harbinger Publishing
© All rights reserved with Harbinger Publishing (2021)
TABLE OF CONTENTS
▪ EDITORIAL BOARD
▪ BOARD OF ADVISORS
▪ EDITORIAL NOTE
Vedangini Bisht, Prajjwal Kushwaha, Srishti Suresh
▪ OPINION- LENIENCY IN THE DRAFT COMPETITION (AMENDMENT) BILL

2020: A STEP FORWARD?
Saurabh Agnihotri
▪ JURISDICTION: AN ISSUE ON INTERNET

Ishaan Goel
▪ ANALYSING THE INTERPLAY BETWEEN COMPETITIVE MARKET STRUCTURES AND

IPR PROTECTIONS THROUGH A STUDY OF ITS MUTUAL IMPACT ACROSS
DIFFERENT INDUSTRIES
Anushka Ghosh
▪ SAMIR AGARWAL V. COMPETITION COMMISSION OF INDIA: THE SUPREME

COURT OF INDIA SETS STRAIGHT THE LOCUS STANDI REQUIREMENT
BEFORE THE CCI
Pranjali Sahni & Souradeep Mukhopadhyay
▪ THE SCOPE OF THE DIRECTOR GENERAL’S POWERS

Shourya Bhansali
▪ RETHINKING PLAGARISM AS COPYRIGHT INFRINGEMENT: A LEGAL

DISCOURSE
Ashu Billy Manners Abang
▪ A COMPREHENSIVE ANALYSIS OF THE CHALLENGES TO COPYRIGHT

PROTECTION VIS-À-VIS ARTIFICIAL INTELLIGENCE: EXPLORING
PRACTICAL LEGAL SOLUTIONS
Yatin Gaur
▪ NOTE OF THANKS
EDITORIAL BOARD
FOUNDING EDITOR | Sameer Avasarala
CO-FOUNDING EDITORS | Samiya Zehra, Shashank Kanoongo
PUBLISHING EDITOR | Nayanikaa Shukla
EDITOR-IN-CHIEF | Vedangini Bisht
DEPUTY PUBLISHING EDITORS | Shreya Mukherjee, Ishika Garg
DEPUTY EDITORS-IN-CHIEF | Prajjwal Kushwaha, Srishti Suresh
EDITORIAL ADVISORS | Niti Richhariya, Swati Sharma
Executive Editors | Saurabh Agnihotri, Insaf Ahmad T.K,

Vijay Rohan Krishna, Ayushi Dubey
Senior Associate Editors | Ameya Avinash Munzner Foujdar, Tawishi

Beria, Eishan Mehta, Waleed Nazir Latoo,
Philip Ashok Alex, Amala Govindarajan,
Purushotham, Ashutosh Rajput
Associate Editors | Vincenzo Iaia, Parina Muchhala, Sidra
Javed, Manas Agarwal, Srihari
Mangalam, Debargha Mukherjee,
Divyakshi Jain, Manvee Kumar Saidha,
Ishika Garg, Tanya Saraswat
BOARD OF ADVISORS
1. Justice A. K Sikri, Former Judge, Supreme Court of India

2. Justice Pratibha M. Singh, Judge, Delhi High Court
3. Justice Dr. Phansalkar Joshi, Judge, Bombay High Court
4. Justice Prabha Srideva, Former Judge, Madras High Court
5. Adv. Arvind Datar, Senior Advocate, Supreme Court of India
6. Dr. Ranbir Singh, Vice-Chancellor, NLU Delhi
7. Dr. R. Venkata Rao, Former Vice-Chancellor, NLSIU Bengaluru
8. Dr. Geeta Gouri, Former Member, Competition Commission of India
9. Dr. Mohan Dewan, Principal, R. K. Dewan & Co.
10. Dr. V. C. Vivekanandan, MHRD Chair Professor, NALSAR Hyderabad
11. Adv. Vikrant Rana, Managing Partner, S.S. Rana & Co.
12. Adv. Priyank Gupta, Partner, StratJuris & Partners
13. Adv. Anshuman Sakle, Partner, Cyril Amarchand Mangaldas
14. Adv. Adheesh Nargolkar, Partner, Khaitan & Co.
15. Adv. Swathi Sukumar, Advocate-on-Record
16. Dr. Shashikala Gurpur, Director, Symbiosis Law School, Pune
17. Prof. Padmavati Manchikanti, Associate Professor, RGSOIPL, IIT Kharagpur
18. Prof. Gráinne de Búrca, Florence Allen Professor of Law, New York University
EDITION IX DECEMBER 2021
EDITORIAL NOTE
Vedangini Bisht, Prajjwal Kushwaha, Srishti Suresh
The year 2021 was brim with important developments in the field that the Journal of
Innovation, Competition and Information Law deals in.
Non-Fungible Tokens (“NFTs”), which provide a receipt of the ownership of the digital version
of an asset, have been gaining immense prominence this year. Since the regulatory
development in the field has not matched the public interest in the same, there is a need to
acknowledge the various issues they impose, especially in the field of copyright law. At the
same time, NFTs also stand in a position to transform the royalty system, especially in the
music industry which has been the main breeding group of such disputes, by giving the creators
of work, the right to decide how they wish for their copyright to be distributed.
Google faced a collective antitrust action this year, based on the alleged abuse of dominance
in the operation of its Google Play Store. This is similar to the action which was brought against
Apple earlier in the year. The dispute related to the surcharge which is charged by Google for
the in-app purchases made through the Google Play Store, which is a whooping 30%. It is
argued that there is abuse of dominance since Google holds a monopoly in the payment market
and app store. This is latest in the trend where a number of tech giants are finding themselves
in the middle of anti-trust suits.
In India, in August 2021, Competition Commission of India penalised Maruti Suzuki India
Limited (MSIL) to the amount of INR 2 billion for restricting and controlling the discounts
offered by its dealers to the end consumers. According to the CCI, MSIL was actively involved
in imposing, as well as enforcing the Discount Control Policy through sanctions such as penalty
or stoppage of supplies to dealers, which lead to denial of benefits to the consumers, and
derogated intra-brand competition.
The Information Technology Rules, 2021 marked the biggest development in the field of
Information Law. It is applicable on: social media intermediaries, publishers of news,
publishers of online curated content. The rules created 2 Different classes of social media
intermediaries: a social media intermediary which primarily facilitates online interaction
between two or more users, and a Significant social media intermediary which is a social media
Page | 5
intermediary with 50 lakh registered users. Perhaps the most controversial provision is with
respect to traceability. Under Rule 4(2), the SSMI shall identify the originator of a message by
the order of the government in certain serious offences under Section 69 of the IT Act, which
was previously protected by end-to-end encryption. This may be used arbitrarily and
disproportionately by the Government to create a chilling effect on free speech.
Our Current Edition
The Journal of Innovation, Competition and Information Law is pleased to feature six unique
papers in this issue. The Edition starts off with the Opinion piece titled Leniency in the Draft
Competition (Amendment) Act 2020: A step forward? authored by Saurabh Agnihotri, an
Executive Editor with the Board. The Opinion analysis Leniency Plus, a method of unearthing
cartels incorporated in the Competition (Amendment) Act 2020. It examines how effective it
will be, the efficacy of withdrawal of leniency application, and how helpful it will be for the
CCI and the informants.
Our first research paper is titled Jurisdiction: An issue on Internet, by Lavanya Ambalkar. The
paper describes the challenges posed by such issues which are matters of concern for every
stakeholder involved. It elaborates on how cross border jurisdiction functions, and shall then
provide a comparative analysis of how such issues are resolved in USA and India.
The second research paper is titled Analyzing the interplay between Competitive Market
Structures and IPR Protections through a study of its mutual impact across different industries,
by Anushka Ghosh. It examines the disjunction between the attempt of Intellectual Property to
promote and encourage greater market contention, and breaking the existence of a monopoly
in market structures.
The next piece in the Edition is a comprehensive Case Analysis titled Samir Agarwal v
Competition Commission of India: The Supreme Court of India sets straight the Locus Standi
requirement before the CCI, authored by Pranjali Sahni and Sourabdeep Mukhopadhyay. The
Case Analysis explores the concern of frivolous actions in this case that lead to abuse of the
competition law process and further attempts to explore the question as to whether the CCI has
the power to impose costs on such miscreants.
Page | 6
On the similar vein of issues in Competition law, our next research paper titled The scope of
the Director General’s powers, authored by Shourya Bhansali, argues that the Indian courts
have time and again expanded the powers of the DG and compares it with other government
agencies empowered to investigate.
The next research paper in the Edition is titled Rethinking Plagiarism as Copyright
Infringement: A Legal Discourse, authored by Ashu Billy Manners Abhang from Nigeria. The
paper demonstrates that Plagiarism may sometimes constitute copyright infringement and
intends to demarcate the boundaries of plagiarism and indicate when and under what
circumstances it may become copyright infringement.
The last research paper in the Edition is A comprehensive analysis of the challenges to
copyright protection vis a vis artificial intelligence: Exploring practical legal solutions, by
Yatin Gaur. The paper argues in favour of the novel concept such as “Work for Hire Doctrine
& Compulsory Registration” model; while also emphasizing to promote and facilitate an open
and insightful debate on the various issues associated with AI-generated work.
As we publish this Edition, we would like to thank the contributors and readers for supporting
JICIL in its mission to be an open-access journal that keeps students and practitioners alike
informed on current issues pertaining to the field of Competition, Innovation and Information
Law. We wish our readers a successful year ahead in these trying times
Page | 7
OPINION: LENIENCY IN THE DRAFT COMPETITION (AMENDMENT) BILL 2020:
A STEP FORWARD?
Sourabh Agnihotri*
The Competition Act, 20021 through the Competition Commission of India provides incentives
to various actors involved in the commission of anti-competitive acts and/or practices to come
forward and disclose such information, in lieu of lenient treatment or immunity. The Ministry
of Corporate Affairs introduced the Draft Competition (Amendment) Bill 20202 to amend the
antitrust law framework in India. This included introduction of US inspired Amnesty or
Leniency Plus as well as Withdrawal of Leniency Application.
LENIENCY PLUS
Leniency Plus, in simple terms, is a method with the primary objective of unearthing more
cartels. Its working mechanism is based on additionally rewarding a member of one cartel with
lenient treatment if they help in disclosing other cartels. According to the Amendment Bill, this
provides the actors of cartels who were not initially given immunity or leniency during
investigation of one cartel to have an opportunity for the same in assisting the authorities to
disclose another cartel. Leniency Plus intends to increase the leniency applications by
incentivizing those who were proven to be a part of cartel in one market to disclose their
collusive agreements in other markets. As a result, the undertaking will benefit the discloser
with immunity for revealing another cartel in a different market, in addition to a substantial
reduction in fine for the participation in the first market cartel hence the “Plus” factor.3
The Author is a IV year law student, pursuing B.A. L.L.B (Hons.) from Gujrat National Law University.
1
The Competition Act, 2002, § 27, No.12, Acts of Parliament, 2002, (India) [hereinafter “The Competition Act”].
2
Ministry of Corporate Affairs, Competition (Amendment) Bill, 2020, available at
https://www.mca.gov.in/Ministry/pdf/AmendmentAct_29092020.pdf.
3
Marek Martyniszyn, Leniency (Amnesty) Plus: A Building Block or a Trojan Horse, 3 (2) Journal of Antitrust
Enforcement, 391-407 (2015), available at
https://pureadmin.qub.ac.uk/ws/files/13701397/submission_JAE_leniency_plus_updated.pdf.
Page | 8
HOW EFFECTIVE WILL LENIENCY PLUS BE?
The introduction of Leniency Plus in the Amendment Bill would lead to two benefits. In the
short term, it would facilitate cartel detections while reducing the cost of the legal enforcement;
while in the long term, it would deter such cartelist from infringing the law since there is a
greater scope of being detected. Further, this method widens the scope of detection in other
markets, since firms in a single market are easily detected once the authorities investigate that
market. The focus on different product or geographical market disclosures will help the
authorities to detect multi-market cartels and cartelists, while continuing the cycle of detection
in other markets, thereby creating a domino effect.
The natural instability of cartels is set-off by creating a “spill-over effect” based on the
understanding that a cartelist will tend to replicate its collusive act in other markets in which
they operate and enter into subsequent cartels. Following the prisoner’s dilemma, the cartelist
will now race to take advantage of the leniency from other infringements, fearing that if they
don’t cooperate and act first, another cartel member will. The additional immunity and benefit
will result in reduced trust between members of a cartel. However, this would only be effective
if resultant immunity and/or leniency from disclosure exceeds the potential monetary benefits
of continuing in the cartel.
It must be kept in mind, that unlike the US, there is no criminal liability in the competition law
of India. Therefore, the deterrent effect of such sanctions is reduced, since the potential
economic benefits of collusion cannot compensate the risk of losing one’s personal freedom.
Thus, the benefits resulting from cooperation should supersede any other benefits that a
cartelist may gain if the additional cartel is not detected. To be effective, the leniency
programme should be based on a credible threat of sanctions having sufficient scale to exceed
the benefits that may accrue from engaging in prohibited conduct. Having no sufficient threat,
any undertaking would cooperate and disclose further information mainly for their strategic
benefits. This leads to a question of whether Leniency Plus alone would provide the necessary
deterrence and destabilization of cartels4.
4
Axel Resvik, The introduction of ‘Leniency Plus’ as a Tool for the European Commission in the Fight Against
Cartels, Uppsala Universitet, (2014), available at https://www.diva-
portal.org/smash/get/diva2:782627/FULLTEXT01.pdf.
Page | 9
The US has had a high success rate because they implemented Leniency Plus with Penalty
Plus. Penalty Plus mandates that if a cartelist under investigation fails to disclose information
of their involvement in another cartel and upon later investigation, the cartel is discovered; the
cartelist will be fined substantially more than would have been otherwise. In United States v.
Bridgestone,5 the defendant failed to disclose their participation in another cartel, causing them
to be penalized further for their non-disclosure. Hence, Penalty Plus supplements Leniency
Plus in aggravating the sanctions, efficiently deterring the undertakings, in addition to
increasing the efficacy of Leniency Plus as a compulsory program rather than an optional
program. India has failed to recognize the concept of Penalty Plus as a necessary deterrent to
make the Leniency Program more efficient and effective. Without the inclusion of Penalty Plus
in India, Leniency Plus is rather an easy way out for the infringers and the efforts towards
discovering cartels in other markets shall be hampered as a result.
WITHDRAWAL OF LENIENCY APPLICATION
The CCI recognises that firms and individuals need to be careful and scrupulous in their
decision to apply for leniency. This decision is generally made by the senior officials of the
firm, who require sufficient information and caveats to take such a huge step. Applying for
leniency is also self-incriminatory in nature, since a party would be expected to disclose full
and vital information about its own involvement in an anti-competitive agreement. This causes
hesitance amongst many informants to apply for leniency.
In light of this, the Amendment Bill provides more security to the leniency applicants by
allowing them to withdraw their applications. Earlier, only the CCI could withdraw the
leniency application (and not vice-versa) during the stage of enquiry, if the applicant did not
comply with the stipulations and rules and/or failed to cooperate. Generally, this was
communicated to the parties along with the CCI’s final order, and not during the stage of
enquiry. Consequently, this did not halt the party from disclosing any other potentially relevant
information if they feared that they would not get the benefits from the programme.
WILL THE WITHDRAWAL HELP CCI OR THE INFORMANT?
5
United States v. Bridgestone, 492 F. Supp. 2d 988 (N.D. Ohio 2014).
Page | 10
Presently, the Act does not permit the informant party or complainant to withdraw their
leniency application, so the enquiry started by CCI ends only when the Director-General has
completed his investigation and a subsequent order is passed. Generally, an informant party
only becomes a whistle-blower against the investigated party when a dispute arises between
them. Importantly, a repeated occurrence is observed in several cases 6 wherein the party
accused for anti-competitive behaviour, (be it price fixing, abuse of dominance, etc.) settled
their differences with the informant, by vowing to discard their anti-competitive behaviour.7
However, that would be futile as the informant party after filing their leniency application is
forced to follow through the initiated proceedings against the other party. The CCI repeatedly
held that it did not have sufficient statutory powers to withdraw the application. However, the
timely introduction of the right to withdraw the application in the Amendment Bill will aid the
informants.
The right to withdraw leniency applications will add a new dynamic to the leniency programme
in India. Such withdrawals which are made before the order is passed can save the CCI precious
regulatory resources, such as an elaborate investigation, paperwork and other tedious tasks.
However, the right to withdrawal has a high susceptibility of being misused by the informants
and the party against whom they disclose the information. To avoid being penalised heavily,
and facing a potential fall in shares due to the publicity of anti-competitive behaviour, the
accused party might pay-off a hefty bribe to stop the informant, which are generally smaller
enterprises in need of monetary aid.
This ensures that anti-competitive behaviour is still maintained by the party against whom the
complaint is made and disrupts fair competition in the market. Although, a coping mechanism
for this loophole was thought of, and the Amendment Bill clarifies that notwithstanding the
withdrawal, the CCI and DG shall be entitled to use the evidence given by the applicant of the
withdrawn application against any other third party. As for the self-incriminatory evidence
provided by the applicant, the CCI shall ensure that it would not make use this evidence to base
an investigation. However, this does not protect or preclude the informant party from
investigation and further charges by the CCI for information found against them independently,
6
Prime Mag. Subscription Services Pvt. Ltd. (Informant) v. Wiley India Pvt. Ltd. & John Wiley & Sons Ltd,
MANU/CO/0037/2016.
7
Thiruvananthapuram Entertainment Network (P) Ltd (Informant) v. Star India Pvt. Ltd, 2018 CompLR 7(CCI).
Page | 11
for instance, web pages or any other public domain. It is provided that this can only be the case
if the information which became public, was not because of the leniency application. Therefore,
it remains to be seen who out of the CCI, or the informant is the real beneficiary of this right.
In the UK, the applicant is rewarded with a reduction of penalty despite withdrawal of leniency
application, in case their evidence was used by the Commission to pass an order. A similar
approach can be expected in India once the Amendment Bill is passed so that the information
provided by the informant does not go unrewarded, even though they withdrew their
application. Although, the Amendment Bill aims at incentivising potential leniency
applications through these changes, the Bill still does not require the CCI to provide
confidential guidance to informants which is followed extensively in the UK and the US to
avoid any potential conflict in the leniency proceedings.
CONCLUSION
The Draft Competition (Amendment) Bill, 2021 aims to augment the leniency programme in
India to extensively promote its usage. Incentivising the leniency applicants has been the crux
of this Bill, which in turn exposes more anti-competitive behaviour in different markets. The
addition of Leniency Plus programme was a prominent change, however, while the programme
has benefits in increasing the discovery of more cartels, it has not been implemented in a
strategic manner. Failing to incorporate Penalty Plus along with Leniency Plus, and the absence
of a framework of deterrence will lead to companies misusing the provision; which might
defeat the purpose of the Leniency Plus programme. The second feature is the right of the
informant to withdraw their leniency application. Although this provision seeks to protect the
informants at large and their interests, it does carry the possibility of potential misuse which
can disrupt the objective of exposing anti-competitive behaviour. An alternative approach of
incorporating confidential guidance through which informants could consult the CCI before
applying could have further enhanced the efficacy of the programme.
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JURISDICTION: AN ISSUE ON INTERNET
Lavanya Ambalkar1
“As long as different countries have different laws and cultures, there are no good principles
for jurisdiction. Only less bad ones. Every nation wants unity, but no nation wants to give up
any of its traditions.”
- Carlen-Wendels, T. Nätjuridik, Stockholm, Norstedts Tryckeri
ABSTRACT
The internet has revolutionised our lives in unimaginable ways. It allows people all over the
world to collaborate and participate in events in a digital space that is devoid of geopolitical
borders and surpasses the limitations of the physical world. Its pervasiveness and prevalence
have resulted in a legal tangle including jurisdiction, liability, and the enforcement of
substantive legislation, among other issues.2 Furthermore, the rise of internet activities and
the virtualization of the physical world has resulted in unprecedented jurisdictional uncertainty
and multinational lawsuits.3 This article describes the challenges posed by such issues which
are matters of concern for every stakeholder involved. It shall elaborate on how cross border
jurisdiction functions, and shall then provide a comparative analysis of how such issues are
resolved in USA and India. Several case laws shall also be discussed in this regard.
Key words: Cyber Crime, The Internet, Cross Border transactions, Jurisdiction issues in cyber
space.
INTRODUCTION & GENERAL BACKGROUND OF THE ISSUE
1
The Author is a IV year law student from Symbiosis Law School, Pune.
2
Derek J. Illar, Unravelling International Jurisdictional Issues on the World Wide Web, 88 (1) University of
Detroit Mercy Law Review, (2010).
3
Id.
Page | 13
The term "jurisdiction" is defined as “The power and authority constitutionally conferred upon
(or constitutionally recognized as existing in) a court or judge to pronounce the sentence of the
law, or to award the remedies provided by law, upon a state of facts” as per the black law’s
dictionary4. This term is used to describe two distinct legal aspects. These questions can also
be considered as research questions for the purpose of this assignment.
A. To what extent does a court have legal jurisdiction to entertain a cross-border dispute
and enforce the rules of the jurisdiction in which it is located?
B. When is it appropriate for a court or tribunal to assert jurisdiction over a dispute
between private parties?
When something goes wrong in contracts between companies in various jurisdictions, it's not
really clear where a legal case can be filed. The following concerns are raised.
• How can you enforce a court ruling when each party is in a different country?
• Should it be in the buyer’s home country? Or the seller’s or the service providers?
These questions are of great concern to companies when they are making business decisions.
There is fear is that until there is an international agreement to clarify matters then business
will be reluctant to take full advantage of the opportunities put forward by the internet. 5
Our diplomatic structure is focused on the division of sovereignties, which dates back to the
Treaty of Westphalia in the seventeenth century, and these existing forms of interstate relations
are unable to keep up with the digital realities of the twenty-first century.6 The concept of a
computer or internet did not exist at that time. As a result, we face two big challenges: how to
maintain cyberspace’s global existence while adhering to national legislation, and how to
combat Internet misuse and harassment while preserving human rights security. To ensure
quality and due process, all tasks necessitate cross-border coordination and consistent
procedures.7
4
Jurisdiction, Black's Law Dictionary 4th Ed. Rev. 6-1971.
5
Justice Talwant Singh, Jurisdictional Issues in Internet Disputes, (March 19, 2010), (Powerpoint Slides),
available at https://www.slideshare.net/talwant/jurisdictional-issues-in-internet-disputes.
6
McGlinchey, S., Scheinpflug, C. & Walters, R., International relations theory, Bristol: E-International relations,
2017.
7
Supra Note 5.
Page | 14
CHALLENGES POSED BY SUCH JURISDICTIONAL ISSUES
A. Territorial Conflicts
The Internet’s technological infrastructure was designed from the start to be cross-border and
non-territorial. The World Wide Web encourages users to access any connection regardless of
their physical location by nature, and social media networks represent hundreds of millions of
people in shared cross-border online spaces. According to Collin’s dictionary, The World Wide
Web is a computer system which links documents and pictures into a database that is stored in
computers in many different parts of the world and that people everywhere can use. The
Internet's transnational nature has resulted in unparalleled global, technological, and social
benefits for humanity. It has made our lives 100 times easier. Cross-border communication is
now a cakewalk. One can get access to any kind of information they want. It fulfils the promises
of Article 19 of the Universal Declaration of Human Rights on access to knowledge
"irrespective of frontiers" in a unique way.8
However, some materials available on the internet that are lawful in one country can be
unlawful or even criminal in other countries. Activities such as online gambling could be
perfectly legal in one country but illegal in another. In Islamic countries, even music apps could
be declared as illegal, The Internet, like any other human-made tool, is vulnerable to abuse,
and as a result, cross-border cybercrime emerges. Furthermore, offenders are constantly using
remote contact methods ‘in the real world’ and investigators need access to information stored
by Internet service providers in other countries.
At least four territorial factors can play a role in determining applicable law: the location of the
Internet user(s); the location of the servers that store the actual data; the locus of incorporation
of the Internet companies that run the service(s) in question; and, potentially, the registrars or
registries through which a domain name was registered. 9
The enforcement of laws in cyberspace and the resolution of Internet-related conflicts are both
complex and inefficient due to these contradictory and sometimes incompatible territorial
8
Bertrand de La Chapelle, Paul Fehlinger, Jurisdiction on the Internet: From Legal Arms Race to Transnational
Cooperation, Internet & Jurisdiction, (April, 2016) available at
https://www.internetjurisdiction.net/uploads/pdfs/Papers/IJ-Paper-Jurisdiction-on-the-Internet.pdf.
9
Id.
Page | 15
requirements. The international system's underlying concepts of separation of sovereignties

and non-interference between states make court rulings impossible to implement and
discourage the cross-border coordination needed to effectively deal with online misconduct.
Such issues shall be examined in detail in the next section.
B. Issue for every stakeholder
Each category of actors is concerned with the issue at hand of Internet jurisdiction.
Governments must ensure that the rule of law is upheld online, as well as protect civilians and
fight crime. In the lack of consistent standards for how to apply national laws on the cross-
border Internet, a sense of confusion prevails. Law enforcement authorities, in particular,
believe that they are unable to perform the appropriate investigations to prevent transnational
crime and network abuse.10 The theory of separation of jurisdictions becomes an impediment
to international relations in a system founded on Westphalian territoriality11
Global Internet platforms that relied on terms of service to determine the authority of their
country of incorporation in the early days now have to deal with – and interpret – the 190-plus
separate national laws of the countries in which they are available. This is especially difficult
for small and medium-sized businesses.12 Faced with an increasing number of direct demands
for content removal or access to consumer data, they are often concerned about removing the
protection of the limited-liability system they have enjoyed so far, and being responsible for
thousands of quasi-judicial rulings with major human rights implications and reputational
threats.
Technical experts are concerned that the basic layer distinction that underpins the Internet
infrastructure could get muddled. Registries and registrars, in particular, are seeing an increase
in attempts to use the domain name system (DNS) as a global content control tool. Internet
service providers (ISPs) and hosting companies are also involved.
Civil society Organisations around the world are concerned about a possible sprint to the
bottom in terms of freedom of speech and privacy rights, as well as a perceived privatisation
10
Id.
11
Id.
12
Id.
Page | 16
of conflict resolution. Average consumers are perplexed by the legal ambiguity surrounding
which laws apply to their online activities, and they feel unable to seek predictable and
affordable remedies when they are affected because multi-national litigation is out of their
control.
International Organisations: Because of overlapping thematic scopes or a geographical remit

that isn't uniform, international organisations struggle. Although several organisations, such as
the Council of Europe, the Organisation for Economic Co-operation and Development
(OECD), and the United Nations Educational, Scientific, and Cultural Organization
(UNESCO), have made considerable efforts to engage civil society, the private sector, and the
professional community in their structures, they are nevertheless intergovernmental in nature.
As a result, due to a lack of unity, or worse, discord among their members, they are constrained
in their ability to place important but critical topics on their agenda.
C. Other Issues
Domain name seizures: Under which conditions and criteria is action at the DNS level
justified, given its global impact?
Content takedown and withholding: How can stakeholders determine proportionate

restrictions to access that respect both national laws and international human rights?
Access to user data: Under which conditions can law enforcement in one country obtain
communication of user information from a foreign operator? 13
Extradition: Extradition is an action wherein one jurisdiction delivers a person accused or

convicted of committing a crime in another jurisdiction, over to the other's law enforcement. It
is a cooperative law enforcement procedure between the two jurisdictions and depends on the
arrangements made between them. Some countries may allow extraditions, others may not.
Hence prosecuting becomes difficult.
HOW DOES CROSS-BORDER JURISDICTION FUNCTION?
13
Id.
Page | 17
In order to better understand the jurisdictional issues in cyberspace, one needs to understand
the types and theories of jurisdiction. A brief background is presented below:
The Internet, which facilitates cross-border transactions, does not specifically demarcate
territorial boundaries or sovereignty using its algorithm. Acts on the Internet that are lawful in
one state may be unconstitutional in another, even though the act is not specifically aimed at
that state. The laws of a country may have extraterritorial application, stretching the jurisdiction
of the country's laws beyond its sovereign and territorial boundaries. It appears that various
countries have different perspectives on this topic. Cybercrime legislation has been enforced
in a number of countries over the last few decades, with differing and divergent jurisdiction
provisions.14
Jurisdiction encompasses several discrete concepts, including jurisdiction to prescribe,

jurisdiction to adjudicate, and jurisdiction to enforce.15 Jurisdiction to prescribe is a sovereign
entity’s authority “to make its law applicable to the activities, relations, or status of persons,
or the interests of persons in things by legislation, by executive act or order, by administrative
rule or by determination of a court.” 16 Jurisdiction to adjudicate is a sovereign entity’s
authority “to subject persons or entities to the process of its courts or administrative tribunals
for the purpose of determining whether prescriptive law has been violated”. 17 There are
various theories of jurisdiction and have been described as under:
A. Territoriality Theory
The territoriality theory is the most basic and widely accepted principle, which states that a
sovereign state has the power to judge illegal actions committed within its borders. However,
in order to apply this principle, the location where the offence was committed must be
determined.
B. Nationality Theory
14
Aqa Raza, Laws Relating to Cyber Crimes: Theories and Legal Aspects, (October 12, 2016). Available at
https://ssrn.com/abstract=3066200.
15
United States v. Yousef, 327 F.3d 56, 99 (2d Cir. 2003).
16
Kim Soukeih, The Shifting Doctrine of Jurisdiction, 10(1) Canberra Law Review 221, (2011), available at
http://classic.austlii.edu.au/au/journals/CanLawRw/2011/9.html.
17
Susan W. Brenner & Bert-Jaap Koops, Approaches to Cybercrime Jurisdiction, 4(1) Journal of HIgh
Technology Law, (2004).
Page | 18
Nationality theory, also known as Personality theory, accepts that a sovereign state will enact
criminal laws that regulate the behaviour of its citizens when they are outside of its boundaries.
The nationality principle allows a sovereign to enact legislation making it unlawful for its
citizens to partake in activity that is not illegal in the country where the conduct is carried out.
C. Protection Theory
The protection theory accepts that a sovereign may enact legislation criminalising activity that
happens outside of its territory if it has an effect on the sovereign.18
D. Universality Theory
The universality principle accepts that a sovereign can enact criminal laws that extend to
actions committed by any individual anywhere in the world if that conduct is deemed to be of
universal concern by other nations.
E. Derived Jurisdiction Theory
This is not a stand-alone basis for determining jurisdiction. A state that does not have
jurisdiction over such actions under its national laws, case law, or embodied principles may do
so if the state that does has jurisdiction decides to do so.
THE AMBIGUOUS APPLICATION OF PRIVATE INTERNATIONAL LAW AND LACK OF

HARMONIZATION
Against this background, persons unfamiliar with private international law (or as the discipline
is referred to in common law systems, conflict of laws) might be surprised to find that many,
not to say most, states' private international law rules do in fact provide for jurisdictional claims
over any website that can be accessed in its territory, in relation to a wide range of legal matters.
Similarly, many, not to say most, states' private international law rules do provide for the court
to apply the law of the state where the court is located in many situations where jurisdiction is
being exercised over a foreign website.19
18
Supra note 2.
19
Dan Svantesson, An Introduction to Jurisdictional Issues in Cyberspace, 15 Journal of Law, Information and
Science 50 (2004).
Page | 19
JURISDICTION UNDER CYBER CRIME CONVENTION, 2001
Long arm statutes enable domestic courts to exert personal jurisdiction over defendants that
are located outside of the forum state's jurisdiction. The issue is that if the forum court's orders
against defendants outside its jurisdiction cannot be enforced, the forum court's action will be
pointless. As of 2020, 64 countries have ratified this convention of which India is not a part of.
States that have ratified the additional protocol must make it illegal to distribute racist and
xenophobic content through computer networks, as well as to make threats and insults
motivated by racism or xenophobia.20 The convention deals with application of territoriality
and national theories to solve various disputes related to cyber offenses.
AMERICAN METHODS OF RESOLVING INTERNET JURISDICTIONAL ISSUES
To determine personal jurisdiction in the United States [US] the requirement of “certain
minimum contact” with the jurisdiction where the cyber transaction happened must be
followed. This is in line with the United States of America's Long Arm Statute. 21Traditionally,
the Supreme Court has ruled that a defendant should be held liable over those cross-border
matters if they have at least a minimal level of contact with the State seeking to hold them
liable and a reasonable fear of being sued in that State (International Shoe v. Washington22).
In this regard, courts in the US have held that mere advertisements on a website are not enough
to hold a defendant liable for a cross-border tort and to exercise personal jurisdiction there.23
Prior to this, in 1984, the Supreme Court decided in Calder v. Jones24 that if an action is aimed
at a certain forum, even though there is minimal contact, the ‘effects test’ can be extended. The
facts of this case are as follows. An article in this case was written and edited in Florida, but it
was about a California resident and based on California references, so the Court determined
that the malicious tortious act was "expressly directed at California." This test effectively states
that jurisdiction would be met if an act is committed deliberately, has an effect beyond the
forum state, and is aimed or targeted at the forum state. Thus, the effects test is useful when
20
Supra note 2.
21
Parthasarathy Radhika, The curious case of personal jurisdiction for cyber based transnational transactions in
India: Does one size fit all?, available at https://conflictoflaws.net/2020/the-curious-case-of-personal-jurisdiction-
for-cyber-based-transnational-transactions-in-india-does-one-size-fit-all/?print=pdf.
22
International Shoe v. Washington, 326 U.S. 310 (1945).
23
Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414 (9th Cir. 1997).
24
Calder v. Jones, 465 U.S. 783 (1984).
Page | 20
the exact nature of the defendant’s internet activities needs to be assessed vis-à-vis; injury
caused to a resident elsewhere, in a different State. 25
In the recent case of Zippo Manufacturing Co. v. Zippo Dot Com Inc,26 the legal situation in
the United States seems to have been resolved in this respect. According to the Zippo Test,
jurisdiction would be determined based on the nature of the website, and a sliding scale test
would be used. It went on to state two critical points:
• The site's interactive nature, which will help in quantifying the magnitude of the damage;
• The adverse impact within the concerned state's jurisdiction.
Websites can be classified into three types, according to Zippo: websites that perform business
over the internet, websites where users exchange information with host computers, and
websites that do nothing more than present information. However, this has been questioned for
not including adequate detail on the assessment of the website's level of interactivity to justify
its use.27
Several cases, however, continue to apply the Calder case well into the twenty-first century. In
Blakey v. Continental Airlines,28 for example, the minimum contacts test was combined with
the effects test to determine “proper jurisdiction.” Young v. New Havem Advocate,29 in which
two Connecticut newspapers defamed the warden of a Virginian jail, cemented this. The court
used the Calder test to re-evaluate the questions, concluding that evidence must be derived that
the defendant's internet operation is directly aimed at or directed to the forum State. Similarly,
the Calder test was used to determine personal jurisdiction between two French associations
and Yahoo! Inc. in Yahoo! Inc. v. La Ligue Contre Le Racisme et L'Antisemitisme 30 (an
American company). As a result, it is more fitting to conclude that US courts first apply the
Zippo Test, but then apply the Calder Effects Test to create a comprehensive test.
INDIAN METHODS OF RESOLVING INTERNET JURISDICTIONAL ISSUES
25
Dudnikov v. Chalk & Vermilion, 514 F.3d 1063 (10th Cir. 2008).
26
Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119.
27
Supra note 5.
28
Blakey v. Continental Airlines, 751 A.2d 538 (NJ 2000).
29
Young v. New Havem Advocate, 315 F 3d 256 (4th Cir, 2003).
30
Yahoo! Inc. v. La Ligue Contre Le Racisme et l’antisemitisme, 433 F.3d 1199 (9th Cir. 2006).
Page | 21
A. Jurisdiction under the Code of Civil Procedure, 1908
The Indian status corresponds to the minimum contract law in the United States. The
jurisdiction element in civil cases is governed by the Code of Civil Procedure, 1908. According
to Section 19 of CPC, a suit seeking compensation for a wrong done can be filed in any of the
courts if the wrong was performed within the local limits of one court's jurisdiction and the
claimant lives in or does business within the local limits of another court's jurisdiction.
Section 20 of the CPC further provides that the suit shall be instituted within the local limits of
whose jurisdiction the defendant resides or the cause of action arises.
Further, Section 13 of CPC provides that a foreign judgment is to be conclusive as to any matter
which has been directly adjudicated upon between the same parties or between parties under
whom they or any of them claim litigating under the same title except under certain specified
conditions.31
B. Jurisdiction under Information Technology Act, 2000
Cybercrime is prosecuted in India under the Information Technology Act of 2000. The Act was
enacted to address cybercrime, and it has separate institutions with exclusive authority over the
cybercrimes mentioned in the Act. As per the act, the Adjudicating Officers named by the
Controller, the Cyber Regulations Appellate Tribunal, and the High Court are the three forums
listed. The main issue arises when cybercrime falls under an extraterritorial jurisdiction.32
i. Section 75
According to Section 75 of the Information Technology Act of 200033, India claims ‘long arm’
authority over foreign parties that perform illegal activities outside of India that affect a
computer information system in India. The section notes that the Act's rules will extend to
anyone, regardless of nationality, who commits an offence or contravention outside of India.
31
Anisha Kumar, Jurisdictional Challenges while doing Online Transactions, iPleaders, (March 3, 2017),
available at https://blog.ipleaders.in/jurisdictional-challenges-while-doing-online-transactions/.
32
Supra note 2.
33
The Information Technology Act, 2000, S. 75, No. 21, Acts of Parliament, 2000, (India).
Page | 22
As a result, the Act has introduced the universal jurisdiction principle to protect both cyber
contraventions and cyber offences.
Section 75 reads as:
“Act to apply for offence or contravention committed outside India:
(1) Subject to the provisions of sub-section (2), the provisions of this Act shall apply
also to any offence or contravention committed outside India by any person
irrespective of his nationality.
(2) For the purposes of sub-section (1), this Act shall apply to an offence or
contravention committed outside India by any person if the act or conduct constituting
the offence or contravention involves a computer, computer system or computer
network located in India.”
Long arm statute jurisdiction is shown in this section. Long arm statutes enable domestic courts
to exert personal jurisdiction over defendants that are located outside of the forum state's
jurisdiction. The issue is that if the forum court's orders against defendants outside its
jurisdiction cannot be enforced, the forum court's action will be pointless.34
RELEVANT LANDMARK CASES
A. Casio India Co. Limited v. Ashita Tele Systems Pvt. Limited35
This was the first case to recognize Internet jurisdiction, in which the court issued an injunction
prohibiting the Defendant from using the website www.casioindia.com since the Defendant's
website is accessible in Delhi, which is sufficient to invoke this Court's territorial jurisdiction.
The Delhi High Court ruled that simply being able to access the website gives the court
territorial jurisdiction to decide the case.
B. Independent News Service Pvt. Limited v. India Broadcast Live Llc and Ors36
34
Supra note 2.
35
Casio India Co. Limited vs Ashita Tele Systems Pvt. Limited, 2003 (27) PTC 265 (Del).
36
Independent News Service Pvt. Limited v. India Broadcast Live Llc And Ors., 2007 (35) PTC 177 (Del).
Page | 23
In this case, in 2007, the Delhi High Court reiterated the US courts holdings that, where the
website is interactive, having target audience in another place, the court of those places has the
jurisdiction of dispute arising from that website activities, irrespective of the place of
defendants.37 The place of defendant’s residence was considered irrelevant.
C. Banyan Tree Holding (P) Ltd. v. Murli Krishna Reddy and Anr38
The most intriguing aspect of the case was that although none of the parties were located within
the court's territorial jurisdiction, both of their websites were accessible in Delhi. The court
reversed its position in the Casio case, stating that mere accessibility of a website in Delhi does
not invoke jurisdiction by the Delhi Court. It reiterated US case laws and held that “The plaintiff
has to show Defendant’s ‘purposeful availment’ directed towards the forum state, indicating
that the use of website was with the intent of commercial transaction with the site user which
leads to a damage or injury to the plaintiff.”39 The court, also concluded the law of determining
jurisdiction over internet on following conditions:
• The website may have resulted in a commercial transaction.

• The defendant had to have targeted the forum state directly.
• The complainant must have suffered some harm as a result of the defendant's conduct.
• The plaintiff must be physically present in the forum state, not just have the potential
of doing so.
In this case, the Court determined that the defendant's website is accessible in Delhi and hence
is not a passive website under American law. In addition, the defendant sent a brochure to Delhi
advertising the selling of their home. Parties in this case cited International Shoe Co., the Zippo
Test of "sliding scale," Cybersell Inc., and the effects test in Calder, among other American
cases on the same subject. It then went on to address cases from Australia and Canada before
weighing in on India's position. The Court thus chose to apply the “effects” test with the
37
The Question of Internet Jurisdiction, IIPRD, (November 22, 2017), available At https://www.iiprd.com/the-
question-of-internet-jurisdiction/#_ftn9.
38
Banyan Tree Holding (P) Limited vs A. Murali Krishna Reddy & Anr, CS (OS) No. 894/2008.
39
Supra note 14.
Page | 24
“sliding scale” taste, this reconciling the application of the Calder test with the Zippo Test in
India.40
D. Super Cassette Industries Ltd. Vs. Myspace Inc. and Anr41
An action for infringement of Copyright was brought before the Delhi High Court. According
to the Court, the Defendant intended to show Indian works to Indian viewers, thus influencing
people under its jurisdiction. Furthermore, the Court determined that the Defendant's website
was interactive, allowing users to access, stream, and share downloaded works with the general
public. As a result, it was decided that there was enough interactivity geared toward Indian
consumers. As a result, the Court determined that it had proper jurisdiction in this matter.
E. World Wrestling Entertainment, Inc. vs. M/s. Reshma Collection &Ors42
The Delhi High Court held that mere accessibility of website in a forum state which ‘solicits’
its business, through which Defendant’s goods and services are sold, is enough to raise cause
of action and in determining the personal jurisdiction in Delhi. The same was reiterated in
Choice Hotels International Inc. v. M. Sanjay Kumar and Ors 43by the single judge bench in
the High Court of Delhi.
CONCLUSION & SUGGESTIONS
An often-repeated quote in the context of the internet is that of Judge Nancy Gertner in Digital
Equipment Corp. v. Altavista Technology 44 “The internet has no territorial boundaries. To
paraphrase Gertrude Stein, as far as the internet is concerned, not only is there perhaps ‘no
there, there’, the ‘there’ is everywhere where there is internet access.”45
Because of the various locations involved, the question of Internet jurisdiction has become
difficult to resolve. However, Indian courts have embraced Internet jurisdiction in a general
sense, citing numerous case laws from around the world. We can see from a variety of case
40
Supra note 21.
41
Supra note 38.
42
World Wrestling Entertainment v. Reshma Collection, 2014 (60) PTC 452 (Del).
43
Choice Hotels International Inc. v. V.M. Sanjay Kumar & Ors., MANU/DE/0443/2015.
44
Digital Equip. Corp. v. Altavista Tech, Inc., 960 F. Supp. 456 (D. Mass. 1997).
45
Justice Murlidhar, Jurisdictional Issues in Cyberspace, 6 The Indian Journal of Law & Technology, (2010).
Page | 25
laws that Indian courts have successfully combined the fundamental laws of jurisdiction,
including sections 19 and 20 of the CPC, in deciding Internet jurisdiction. It should also be
noticed that the mere presence of a website is adequate to invoke jurisdiction, even though the
website has only been used to solicit businesses at a specific location, effectively honoring the
effect test established by the US court in the Calder case. However, the tradition of relying
solely on precedent based on case law, rather than explicit rules or legislation, makes these
theories of deciding jurisdiction extremely vulnerable.
Therefore, in the author’s opinion, though several conventions like the Budapest convention,
international landmark cases, and “tests” exist, they can only provide a certain degree of
uniformity to the issue of internet jurisdiction. Since every judge has a different approach to
deciding upon the questions of law and fact, and every court sticks with different precedents,
the unavailability of a fixed global law causes a lot of confusion and fear in minds of the
stakeholders. Owing to the fact that several legal principles followed in Civil law and Common
law jurisdictions may be different, this subjectivity is only bound to create further
complications. The possibility of introducing a legally binding convention still exists, but
again, only a certain number of countries will ratify it causing ambiguity.
In my opinion, one way to solve this issue is to stick to ONE principle of the jurisdiction
(territorial, national or universal) as well as follow ONE test (effects, sliding scale, or
combined) to ascertain internet jurisdiction. This shall take considerable efforts and consensus
building among nations will have to facilitated by the creation of specific international
institutions in this regard. The World Intellectual Property Organization (WIPO) can take up
this responsibility. This shall help in facilitating uniformity in the global system. However,
this will again cause digital sovereignty issues amongst nations.
As regards the solution of this entire issue, the picture still looks blurry. It’s an enigma for all.
Nations will have to cooperate with each other to establish at least one universal method of
ascertaining internet jurisdiction.
Page | 26
EDITION VIII NOVEMBER. 2021
ANALYZING THE INTERPLAY BETWEEN COMPETITIVE MARKET STRUCTURES
AND IPR PROTECTIONS THROUGH A STUDY OF ITS MUTUAL IMPACT ACROSS
DIFFERENT INDUSTRIES
Anushka Ghosh*
ABSTRACT
A discernible fact about the nexus between the fields of Intellectual Property Law and
Competition Law is its nature of dichotomy and contrariety. It is rather fascinating to note that
while Intellectual Property Law endeavours to secure the exclusive right to a certain property
of intellect, Competition Law, in its attempt to promote and encourage greater market
contention, breaks the existence of a monopoly in market structures. In this context, the point
of contrast is hardly clandestine as their objectives itself shed sufficient light on the apparent
existence of the conflicts between the two legislations. The concept of this disjunction will be
expanded upon by studying its existence and impact in different fields of market forces such as
pharmaceutical in light of the COVID 19 pandemic and competitive commercials. Through an
analysis of these issues along with relevant case studies of the same, the authors wish to
accentuate the different ways in which the prevalence of one law may dilute the very intent and
aim of the other. Therefore, through this article, the authors will explore the contrasting fields
of law and study the ways in which they mutually interact or counteract with each other while
also devising and introspecting to formulate a reconciliation at the point of diversion.
Key Words: Intellectual Property Law, Competition Law, monopoly, COVID 19, competitive
commercials, disjunction.
The Author is a V year law student, pursuing B.A. L.L.B (Hons.) from Symbiosis Law School, Pune.
Page | 27
INTRODUCING THE MUTUAL IMPACT OF THE OVERLAPPING LAWS- A STUDY OF DIFFERENT

MEANS AND METHODS OF INTERACTION
To begin this research article, we must delve into the detailed intricacies of how both the laws
affect and obstruct the functioning of each other. This analysis will be conducted in a two-fold
manner through two main subsections. The first will deal with how Intellectual Property Laws
(IPR) act as a hindrance to competitive market structures, thus hindering consumer welfare and
market productivity, while the second subsection shall address the different ways in which
competition laws and objectives may violate Intellectual Property (IP) protections in market
forces.
A. How IP Laws become obstacles to the rudimentary objective behind Competition

Laws
In this context, the primary reason behind the grant of licenses in the field of IPR is to limit
market competition in several ways for a period of time before the rights of the intellectual
property are released in the public domain. On the other hand, competition law primarily
endeavours to stop abusive and monopolistic practices in the market by facilitating and actively
promoting the action of competition between different market structures. This objective
achieves the dual benefit of improving market quality as well as leading to greater consumer
welfare. Consumer welfare is achieved by increasing choice, affordability and quality of
market products through a spirit of competitiveness (instilled in industries) which is mandatory
to sustain one’s position in the market.
i. Excessive Pricing by holders of Intellectual Property Right Protections
Imposing excessively high prices on goods might be considered as an anti-competitive action

if executed by an industry that enjoys a dominant position in the market. In this context, holders
of Intellectual Property Rights undeniably hold a certain level of dominance in their respective
market fields due to the security accorded to them by law. This additional benefit must thus be
accompanied by an equally strong sense of responsibility in the exercise of their commercial
practices. Selling goods at high prices may thus act in contravention to this responsibility
entrusted upon them and could also be against competition rules.
Page | 28
An internationally recognised landmark example in this context would be the over-pricing of

five cancer drugs manufactured by Aspen Pharma, a multinational pharmaceutical company.1
Cancer drugs come under the ambit of “essential goods” and inevitably would contribute to the
welfare of the people. The action of the pharmaceutical’s over-pricing of the IP protected drugs
followed by a threat to remove the drugs from the market of some European Union (EU)
member states altogether was not received favourably and declared as an anti-competitive
abuse of dominance by the European Court.2
The primary question that is raised in such cases is, “What exactly constitutes ‘excessive’ in
this context?” This question has limited answers and different countries address it differently.
For instance, in the United States of America, certain jurisdictions do not consider the actions
of industries with market dominance and power as an abuse of competitive rules and
regulations. On the other hand, Turkey, like the European Union, recognises the concept of
excessive pricing as a potentially prohibited practice when it interferes with fair market
competition.3
ii. ‘Paying off Competition’ to Prolong Patent Protection
In several cases, especially in the pharmaceutical sector, patent holders often resort to ‘paying
off’ their potential competitors or new industries in the market as a way to prolong the
protection granted by this IPR.
To elaborate on this point further, the issue of pharmaceutical competition will be briefly
addressed. For some time now, the pharmaceutical industry has resorted to actions that cause
the delay of new, cheaper and more innovative entrants in the market.4 In many instances,
originators allege the duplication of their own products before the expiry of their patents.
1
European Commission, Case No. AT. 40394, May 31, 2017, available at
https://ec.europa.eu/competition/antitrust/cases/dec_docs/40394/40394_5192_3.pdf..
2
Press Release, Antitrust: Commission opens formal investigation into Aspen Pharma’s pricing practices for
cancer medicines, European Commission (May 15, 2017) available at http://europa.eu/rapid/press-release_IP-17-
1323_en.html.
3
Treaty on the Functioning of the European Union, § 102.
4
Pierre Regibeau, Further Thought on ‘pay-for-delay’ Settlements, Competition Policy International (Sep 27,
2020), "Pay-for-Delay":- Competition Policy International.
Page | 29
An instance in this context would be the case of Citalopram5, in which the European Court
charged monetary compensation from a Danish pharmaceutical company, Lundbeck of around
93 million pounds along with around 52 million pounds from four other pharmaceutical
companies. These companies had colluded to formulate an agreement over the antidepressant
‘Citalopram’ in order to stop the new inflow of these antidepressants even after the expiry of
their patent grant. This agreement contained significant transfer of payments from Lundbeck
to the other new competitors in the market. The action of paying off competitors to keep them
off the market even after the expiration of the patent grant thus constituted anti-competitive
practices and also did not justify the protection granted under Intellectual Property Rights.
iii. Anticompetitive restrictive agreements by Trademark Holders
One of the most commonly occurring issues in the nexus between Intellectual Property Law
and Competition Law involves the clauses contained in commercial contracts like the
restriction in online selling. Trademark owners often resort to measures that impose restrictions
through contractual clauses that restrict the selling of products by other retailers on online
platforms, for instance, on Amazon, eBay etc. These restrictive clauses are usually present in
highly technical trademarked products.
For instance, Coty Inc. (a global beauty cosmetics company) sued Parfumerie Akzente GmbH
(a German company that owns and operates a chain of perfumeries) for the violation of a
selective distribution agreement clause that restricted Parfumerie Akzente GmbH from selling
certain luxury products of Coty Inc. like Chloe, Marc Jacobs, Calvin Klein etc. on other online
platforms like Amazon.
It was reiterated here, that trademark owners of ‘luxury goods’ or ‘branded goods’ specifically
must be allowed to protect the prestige and image of these luxury, branded goods by imposing
restrictive clauses on online sales by other retailers on third party platforms. This is often
justified by the need to preserve and sustain the quality and brand of these ‘luxury goods.’ The
image associated with these goods allows consumers to differentiate them from other similar
5
European Commission, Case No. COMP/AT.39226, June 19, 2013.
Page | 30
goods thus establishing the importance and vitality of the trademark granted in these cases6
and justifying them.
This view was, however, countered in the Adidas case. Adidas imposed certain sales
restrictions on their goods in France and Germany. This move was not viewed favourably by
competition authorities as they did not accept the justification given to prohibit or restrict the
sale of its products on online platforms in order to sustain the standard of its quality. As a result
of this, Adidas was made to accommodate its contracts accordingly.7
In conclusion, thus, such restrictive clauses that impose an absolute ban on online sales are not
viewed favourably. At the same time, trademark holders may justify their stance on restrictions
by appealing to the objective of protecting the reputation and quality of their products. These
must be closely monitored.
iv. Copyright Holders impacting Competition Law
The ambit of copyright protections constitutes software and computer programmes. This case
can be abused as anticompetitive in many ways- refusal to license, excessive royalties, restrict
competitors etc. To understand this exploitation better, the Microsoft and Google cases shall
be briefly analysed. Both these cases saw the abuse of dominant position by companies with
copyright holdings.
In the Microsoft case8, the European Court fined an amount of around 500 million pounds to
Microsoft due to its abuse of its dominant position by refusing to provide its competitors with
indispensable information on interoperability in order to eliminate the development of
competing companies and hence, obstructing consumer choice and welfare.
Additionally, in the Google case9, the technology giant company was fined around 2.5 billion
pounds by the European Court because of its anti-competitive action of comparison-shopping
services. This severely restricted competition in the market as Google promoted its own
6
Copad SA. v. Christian Dior couture SA and Others (2009) ECLI:EU:C: 2009:260 (2009).
7
Eversheds Sutherland, Sales via Online Platforms, Consumer Hub, (August 22,2020), available at
http://consumerhub.eversheds-sutherland.com/retail/ sales-via-online-platforms/.
8
Microsoft v. Commission, ECLI:EU: T:2007:289 (2007).
9
European Commission, Case No. AT.39740, June 27, 2017.
Page | 31
services over even its highest ranked competitor’s services. This allowed Google to make
undue profits at the cost of its rivals and also compromised on consumer welfare in the market.
Thus, giant companies holding copyright protection under IPR also abused their dominant
position and compromised competitive market structures in many ways.
Therefore, to conclude this section, it has been observed that the issue of Competition Law
may arise in any field of Intellectual Property- from patents to copyrights. In most of the cases
discussed, it has been observed that companies having IPR protection enjoyed a dominant
position in the market and thus had to exercise additional caution not to implement or execute
activities that may impede the spirit of market competition.
B. How Competition Law Provisions impede the protections granted under Intellectual
Property Rights
It is intriguing to note that the impact of Market Competition can also cause violations of
Intellectual Property Rights through various methods. The aim of this section is to further
reiterate the mutual impact nature that the two fields of law share. The action of unfair
competition is an economic behavioural mode that is in contravention to good and fair methods
of market competition that have the potential of resulting in consumer as well as competition
harm. There are several instances of unfair competition resulting in a violation of intellectual
property rights. Some of these are enlisted below:
i. Deceptive Advertising
Advertising is a very popular and widely used tool of marketing a product. Some
advertisements however, misconstrue and misuse the idea of “competition”. Such
advertisements result in unfair competition and also deceive the customer of fair competition
by circulating false and untrue information.
An instance of such deceptive advertising in the context of intellectual property law could be
the usage of the trademark of another competitor or product in the advertisement to deceptively
make consumers believe that the product being promoted comes from the advertising
manufacturer.
ii. Deceptive Labelling of Services and Products
Page | 32
Labelling may create the deceptive impression of coming from a particular brand,
manufacturer, location etc. This action also constitutes unfair competition. For instance, the
labelling of a brand as “Dutch coca” even though it does not come from the Netherlands is
grossly misleading and deceptive to the consumers as it lacked the authenticity and unduly
misused the name of a place to advertise its untrue quality standards.10
iii. Passing- off
Passing-off is a similar deceptive tool of unfair competition. In this, companies’ names or labels
are unlawfully used by a competitor. These names or labels usually belong to those designs or
symbols that are publicly and widely associated with another competitor in the market. Such
copying might result in confusion of identification for consumers due to the similarity in
appearances between the two market forces. For example, if a fast-food company runs by the
name “Mc-Fonald’s” it could be mistaken for the giant fast-food global brand of “Mc-
Donald’s”. In such instances, market competition is heavily compromised due to the extreme
conduct of the competitor to deceive, mislead or even confuse the consumers about the nature,
origin and source of goods being offered. Such a demonstration of dishonest behaviour on
behalf of the competitor is seen to have an “Appreciable Averse Effect on Competition”,
attracting violation under Section 3 of the Competition Act, 2002.11 This effect can be judged
by determining the restrictions imposed on market competition due to such acts of “Passing-
off”.
iv. Violating Trade Secrets
Unauthorised and undue announcement or disclosure of a trade secret by a person who was
mandatorily required to protect it under the garb of “market competition” is not only illegal but
also an anti-competitive strategy that violates intellectual property rights as it impedes the
likelihood of equal and fair competition in the market.
Enumerated above are a few examples of competition in the market causing a violation of
intellectual property rights and laws. Through the two sections elucidated upon, it has been
10
What is an Unfair Competition, Ministry of Culture of the Slovak Republic, (November 18,2020), available at
https://www.dusevnevlastnictvo.gov.sk/en/web/guest/nekala-sutaz-a-dusevne-vlastnictvo.
11
The Competition Act, 2002, § 3, No.12, Acts of Parliament, 2002, (India).
Page | 33
sufficiently established that the fields of Competition and IPR are very closely connected and
can have a detrimental impact on each other in most instances. Be it an abuse of dominance or
an anti-competitive deceptive strategy; there are numerous ways in which these actions can
step over the thin border separating the two laws resulting in the urgent need of legal remedies
and a striking mutual balance between the two. This theme has been dealt with in several
instances below and the following section shall deal with a summarisation of some such sources
of literary articles.
APPLICATION OF THE OVERLAPPING NEXUS OVER DIFFERENT INDUSTRIES
This section will deal with an extremely interesting aspect: An analysis of the findings and
discussions around the application of the nexus between the fields of IPR and competition and
how they come in conflict with each other over different areas such as the health sector as well
as the advertising sector. This shall mainly focus on the prevailing conditions of vaccine
requirements during the COVID 19 pandemic for the former and competitive commercials for
the latter. It shall also deal with its consequent impact on consumer welfare and quality of
production.
A. The Health Sector: How is this interplay affecting the generation of a COVID
vaccine globally?
As has already been mentioned, the purpose of IPR is to protect an invention. This includes the
invention or formulation of a vaccine. In this context, how will the provisions of IPR be altered
or navigated in order to prevent an obstacle to the accessibility of this vaccine?
The authors felt the urgency in the need to focus and study the status of the vaccine for the
novel virus in this context. When it comes to the health sector, the burning question that has
consumed and engulfed the entire world in contemporary times is the generation of a vaccine
to fight the COVID-19 pandemic. The problem however, lies here: Will the dichotomy between
IPR and Competition be compromised in order to accommodate the urgent need of this
vaccine?
The response to the ongoing pandemic is heavily dependent on mass-scale, massive and rapid
innovation, especially in the production of substances indispensable and critical for the
diagnosis, prevention and treatment of the virus. This would entail strengthening local and
Page | 34
nation-wise production of vaccines and medicines that are critically required, particularly in
developing nations. With a steep rise in the cases of the COVID-19 infection globally,
developing countries are becoming more desperate to collect and store these necessities in large
stocks while overcoming the problems of limited manufactures and heavy dependence on
imports.
In this context, it is vital to address and recognise the issue of IPR as it can act as a potential
obstruction to the mass and global production of health necessities and products in addition to
research and medical innovation of new products. To elucidate further on this relation, it is
understood that IPR can be navigated by owners of these rights in order to either withhold or
grant permission to manufacture or mobilise technology and resources that are required to
further the development of necessary products. If such permission or licensing is denied,
technology or research may be unavailable to other manufacturers or firms to supply. This
restriction could in turn, pose a very grave threat to the health and life of millions of people
globally. It thus becomes all the more important to recognise the need of suspending IP
protections and protecting innovations from market competition.
In order to promote fair competition in the market, several IP rights may exist over a particular
innovation or technology. It is a popular strategy of patenting in the medical and
pharmaceutical industry to take individual patent protections on the main structure of a
medicinal drug and a large number of underlying patents on its varying formulations,
components, dosages and combinations.12 This can impose a challenge on innovators or users
to manoeuvre their way around the clump of IP rights.
There have already been cases where the transfer of technical know-how has not been permitted
to third parties in response to COVID-19. For instance, the governor of Kentucky state in the
United States admitted to the many difficulties and obstructions in the access and production
of N-95 masks due to the several patents protecting it. Patents protecting certain critical
enzymes could also halt and impede the development of testing kits for the same.13
12
Joe C Mathew, Will Intellectual Property Be a Hurdle in India’s Fight against COVID-19, Business Today
(September 4, 2020), available at https://www.businesstoday.in/latest/trends/coronavirus-will-intellectual-
property-be-a-hurdle-in-indias-fight-against-covid-19/story/400200.html.
13
Travis Waldron, Andy Beshear and Coronavirus, HuffPost US, (September 4, 2020), available
at https://www.huffingtonpost.in/entry/andy-beshear-coronavirus-kentucky-daniel-
cameron_n_5f0f1bcfc5b6df6cc0b44241?ri18n=true.
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Due to these reasons, even the World Health Assembly on COVID-19 has recognised the
potential urgency to adopt and inculcate methods that ensure the free flow of access to health
technologies for COVID-19 despite IP protection laws surrounding it. This is proposed to be
done by accommodating and adjusting the provisions of the Trade Related Aspects of
Intellectual Property Rights (TRIPS) agreement in addition to the consented clubbing of IPR
protected innovations and technical know-how.
i. TRIPS Agreement- Accommodations and Flexibilities: The Indian Context
Since India had to change its patent law in order to allow foreign pharmaceutical companies to
acquire patent protection for such medicines; Indian companies were required to procure a
license from the owner of the patent in order to produce as well as supply the anti-viral
medicine, Remdesivir which is used in the treatment of COVID-19. In this relation, the patent
holding company, Gilead, has granted such a license to only five companies in India to produce
this anti-viral medicine.14 If such stringent requirements of patent protections were absent; a
much larger number of such pharmaceutical companies in India may have been able to produce
this drug, thus increasing accessibility and availability at affordable prices.
There are however, several flexibilities that the TRIPS Agreement accords for that may enable
governments to ensure that such IP rights do not impede accessibility and innovation of health
requirements during an emergency such as the ongoing COVID-19 pandemic. On this note,
there have been some countries that offer to implement immunity against IP violations and the
usage of competition law.15
ii. Use of competition law
On the other hand; countries have also adopted measures for use of technologies that are
protected under IP in anti-competitive arrangements in the context of COVID-19. The
European Court, for example, has launched a primary investigation in the Dutch market on
account of allegations of abuse of dominance by Roche, the pharmaceutical company as it
Jacob Bell, Gilead Licenses Remdesivir, Bio Pharma Dive, (September 5,2020), available at
https://www.biopharmadive.com/news/gilead-license-remdesivir /577876/.
15
Kritika Suneja, India for TRIPS to ensure drugs access, The Economic Times, (September 5,2020), available
at https://economictimes.indiatimes.com/news/economy/foreign-trade/india-for-trips-flexibility-to-ensure-drugs-
access/articleshow/76124654.cms.
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denied the transmission of knowledge containing the secret formula that could be used to
provide a temporary solution for testing kits of COVID-19.16
Thus, even the European Court has declared that it will continue to monitor such market
developments during the pandemic in order to identify and prevent such instances of undue or
misused advantage by some market players. Even developing countries could follow suit and
implement provisions to prevent anti-competitive behaviour by holders of IP rights, thus
facilitating the advancement of local pharmaceutical industries and fighting the wide-spreading
adversaries of the virus.
iii. Other alternate measures
Provisions under the TRIPS Agreement also provide for countries to take measures in
accordance with the current requirements. For instance, Article 73 (b) under TRIPS allows
countries to take any measures that it deems fit in order to protect interests of security
requirements during times of war or any other such emergency in the international arena.17
Thus, countries could suspend patent protection requirements and grant immunity against
enforceable actions in pursuance of its health security interests. Moreover, Article 6 of the
TRIPS agreement further allows for countries to allow the importation of necessary products
including from those countries where such production is undertaken under compulsory
licenses.18
iv. Developing Countries- The Way Forward
The rapid rise in the COVID-19 virus has made it imperative for developing countries to
address the issue of IP rights that are applicable within their borders. This is especially with
respect to indispensable medical requirements along with the legal measures that could allow
timely as well as efficient accessibility to these resources for one and all. In this situation,
developing countries can adopt various measures that are in consonance with the TRIPS
16
Ailish Lalor, Roche pharmaceuticals: why large scale testing for coronavirus isn’t happening in the Netherlands,
Dutch Review, (March 26, 2020) available at https://dutchreview.com/news/roche-pharmaceuticals-why-large-
scale-testing-for-coronavirus-isnt-happening-in-the-netherlands/.
17
Trade in Intellectual Property Rights, Art. 73(b).
18
Trade in Intellectual Property Rights, Art. 6.
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agreement by implementing and navigating their way through new laws or existing laws and
amend or accommodate them accordingly.
It is high time that these developing countries reviewed and revised the status of their laws and
measures that could potentially be implemented or amended in order to curb the devastating
and life-threatening effects that this pandemic might impose on them. Technical assistance
might be a step in the right direction in this context in order to ensure widespread accessibility
of these indispensable health necessities in compliance with legal mandates and provisions of
the TRIPS agreement.
B. Competitive Commercials and IPR Laws: Preventing IPR infringements that occur
under the garb of ‘competition’.
This section will delve into the intricacies involved in the domain of competitive commercials.
This understanding will be dealt with in a four-fold manner. The first would be a brief
explanation of the concept of competitive commercials. This is followed by an elaboration of
how these advertisements cause a violation of IPR laws in the name of ‘competition’ along
with a landmark case study and court judgement surrounding the same. The third section shall
contain a survey that has been conducted by the authors to understand what effect these
commercials have on the minds of consumers and whether there is a negative consequence of
the same on the product being unduly compared. Lastly, the Indian statutory provisions related
to this concept shall be elaborated upon and briefly analysed along with its drawbacks and
current solutions.
i. What are Competitive Commercials?
The concept of comparative commercials entails advertising strategies in which one company
aims to market their own goods or even services through a comparison with services and goods
of another such company. Such a company is often the competitor of the advertising party in a
market setting. The objective behind such marketing strategies is to increase sales by portraying
one’s own product as being the same or often better than the product being compared.19
19
Neil Kokemuller, Competitive Advertising Examples, AZ Central, (September 10, 2020), available at
https://yourbusiness.azcentral.com/examples-competitive-advertising-7266.html.
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ii. How does this relate to Intellectual Property Rights?
When the question of comparative advertising comes to light; it brings along with it an array
of underlying issues that run parallel to this type of marketing strategy.
A trademark is a protection granted under Intellectual Property Rights and runs with the
rudimentary objective of identifying between different goods and services. This is mainly to
ensure that consumers can distinguish between different brands and companies and trace their
origin accurately and from its rightful source.
Moreover, when it comes to comparative commercials; these advertisers unduly and often
without permission from the trademark owner misuse the trademark to allow consumers to
identify the product or service being so compared. This brings out a variety of concerning
issues: the first relates to the goodwill of the trademark owners that is being jeopardised and
the other concerns the misinformation being projected to consumers in the name of
competition. This makes it vital to study and legally analyse the laws surrounding the issue of
comparative advertising and help curb the counter-effects and potential violations that arise out
of it, thus protecting the rights of IP holders, other market competitors and ultimately, even the
consumers.
C. Case Studies in the field of Comparative Commercials- How do they violate

Trademark Laws?
Pepsi Co. Inc. v. Hindustan Coca Cola Ltd 20 : An instance of disparaging the image and
reputation of a brand using its trademark through comparative advertising can be further
analysed through the case of Pepsi Co. Inc. and Others v. Hindustan Coca Cola Ltd. and Others.
The appellant in the impugned case was Pepsi. The suit mentioned was filed against Hindustan
Coca Cola and others. The latter had launched an advertisement in which the lead actor clearly
pointed to his preference for Coca Cola over Pepsi and unduly used the trademark of Pepsi to
degrade its image.
20
Pepsi Co. Inc. v. Hindustan Coca Cola Ltd., 21 P.T.C. 722 (2001).
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In furtherance of this, through legal recourse; the court stated that the decision of the element
of disparagement would be determined by the presence of the following factors:
• Intention and manner of projection of the impugned commercial;

• Plot and message wanting to be broadcasted to consumers through the commercial.
In this instance, the court ruled that in cases where commercials endeavoured only to show
another product without degrading its image or reputation, no legal action arises. However, if
the manner of projection or the message being conveyed suggests that the product being
compared is being degraded and ridiculed despite being protected under IP laws, it constitutes
‘disparagement’ and an action is liable in this instance.
SURVEY CONDUCTED
It has been sufficiently understood that comparative commercials utilise and potentially cause
a violation of another product’s intellectual property in order to make the comparison. To
further understand the impact these competitive commercials have on a product’s image and
quality through consumer perception, the authors conducted a brief online survey through a
questionnaire consisting of 4 questions. These questions addressed the issue of comparative
commercials and the impact they had on consumer perception of the protected product being
compared. These questions were presented to more than 40 people from various backgrounds
like medical, consultancy, economics and law, who were regular viewers of such commercials
and consumers of their products. This survey was undertaken in order to establish the fact that
such commercials not only illegally use the trademark of another product; but also aim to target
the consumers’ perception and direct it to a negative light in the name of “competition”, thus
reiterating the unfairness in this whole activity. Through these channels, such downgrading
messages in the name of ‘competition’, that are projected to the viewers in a repeated manner
by telecasting the commercials on a daily basis, attempt to ensure that the viewers and
consumers receive a clear message on the comparison as such advertisements do leave a lasting
impression on their minds.
Attached below are the statistical graphs of the responses received along with the questions
asked.
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Remarks and opinions on competitive commercials received.
A. Survey: Observation and Analysis
A statistical analysis of this survey yields the result that around 73.2% of people viewing these
commercials actually were hesitant about using the product, the trademark of which was being
used for the comparison. These advertisements led to a majorly negative public perception and
unfairly directed the competition towards their favour. The remarks left by some participants
also hinted at their dissatisfaction and distaste over the comparison being made.
Thus, it can be safely deduced that comparative commercials not only violate Intellectual
Property Laws through an undue use of the trademark involved; they also affect public
perception and more often than not, tarnish the image of these products under the name of
market competition.
INDIAN STATUTORY PROVISIONS RELATED TO COMPARATIVE COMMERCIALS
The term “Comparative Advertising” is not explicitly defined in any Indian statute. However,
two legislations do work together to formulate a primary structure that regulates the concept of
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competitive commercials. These are the Trade Marks Act of 1999 under sections 29 (8)21 and
30 (1)22 as well as the Monopolies and Restrictive Trade Practices (MRTP) Act of 198423 that
has now been repealed and is replaced by the Competition Act of 2002. According to these
legislations, though the concept of comparative commercials is permissible, it must be
exercised within reasonable limits and restrictions.
In this regard, the Trade Marks Act holds the objective of acting like a bridge between the
rights granted to holders of trademark protections as well as ensuring that consumer interests
are upheld by preventing misinformed advertising. Thus, Section 29(8) of the Trade Marks Act
states that if such advertisements are disparaging and dishonest in industrial or commercial
practices and attempt to take undue advantage of the product being compared by damaging its
character or image; it leads to a violation of a registered trademark in this context.
However, Section 30(1) of the same act permits the display of such advertisements provided
these are not disparaging and do not violate the principles of honest practices and fair
comparison.
A. What entails ‘Disparagement’ under the MRTP Act?
The MRTP Act was amended in the year 1984 in order to accommodate a new chapter on the
issue of unfair trade practices under Section 36A. This section purports that unfair trade
practices are those which lead to disparagement of the goods, services or trade of another
person. However, the MRTP Act was repealed by Section 66 of the Competition Act of 200224
and the Consumer Protection Act, 201925 has currently taken over this provision.
Therefore, the action of false representation and disparagement of image is usually designed to
influence a consumer against the usage of one product in comparison to another. Though this
is a strategy undertaken under the spirit of competition, it acts in violation of protections
21
The Trade Mark Act § 29 (8), (1999).
22
The Trade Mark Act § 30 (1), (1999).
23
The Monopolies and Restrictive Trade Practices Act § 36 A, (1969).
24
The Competition Act, 2002, § 66, No.12, Acts of Parliament, 2002, (India).
25
The Consumer Protection Act, 1986, § 2(1)(r), No. 35, Acts of Parliament, 1986, (India)
Page | 43
granted under Intellectual Property Laws thus reinforcing the need to formulate well-structured
laws around the same.
B. Analysis: Drawback in the Indian Legislations
When it comes to the legislations in India surrounding the concept of comparative

commercials; it must be duly noted that there is no standard definition accorded to concepts
surrounding this issue such as “honest practice” or “disparagement”. Thus, to arrive at a
decision, judicial interpretations or dictionary meanings are the methods often resorted to. The
term ‘Unfair Trade Practices’ was defined under Section 36A of the MRTP Act but that has
now been repealed. India thus offers another statute under the Consumer Protection Act as an
alternative to seek recourse in cases of comparative commercials through unfair trade practices.
However, in these cases, the parties involved mention ‘firms’ whose products are projected
through these advertisements and restricts the accessibility allowed to ‘consumers’ in order to
approach the consumer forum.
Thus, though we see a definitive legal lacuna when it comes to the issue of protecting
consumers and producers from the repercussions of comparative commercials due to a certain
ambiguity in the current laws; India has attempted to clear the obscurity by launching the
Advertising Standards Council of India (ASCI) and the Consumer Complaints Council in this
regard under which Chapter IV deals with the regulation of the form and manner of
comparative advertising.26
This Section has meticulously delved into the intricacies surrounding the nexus between
Intellectual Property Law and Competition Law by specifically researching and analysing the
interplay in two industries- Pharmaceutical in the context of COVID-19 and Media through the
aspect of competitive commercials. This analysis yielded the observation and finding of the
many gaps in the laws (with special emphasis on Indian laws) surrounding these two issues, its
public perception and impact as well as an in-depth discussion of the conflicting nexus in this
context through surveys, findings, legal interpretations and case studies. The authors felt the
urgent need to study these two industries in particular due to its undeniable relevance and
26
Mahesh Shetty, Advertising Standards Council of India, Indian Broadcasting Foundation, (Sep15,2020),
available at https://www.ibfindia.com/advertising-standards-council-india-asci.
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indispensability in contemporary times. It is absolutely crucial to address, analyse, review and

amend the status quo of these laws in this aspect as a lacuna in this regard could cost us all
extremely heavily- be it in terms of economy or even actual lives.
BALANCE BETWEEN COMPETITION LAW AND IPR IN INDIA
Despite the potentialities of a severe discordancy between the contrasting objectives of the
legislations; Intellectual Property Rights as well as Competition Law have peacefully and
individually managed to co-exist for a long time. It was only later analysed that Competition
Law might in fact have the prospective of not only co-existing but also actively boosting the
protections of IPR as it would create a market structure that could be less complacent, more
unpredictable and more innovative. After a thorough study, discussion and analysis of this
nexus, it is believed that the problem lies not with the existence of IPR and Competition Law,
but with its exercise.
In this instance, the Competition Act does contain a provision under Section 3(5)27 wherein
IPRs are granted a blanket exception and are duly protected and isolated from its main clause.
The understanding that an interference of the two laws would dampen the element of novelty,
intellect and innovation in IPR, be it in the field of art, technology or medicine, is undeniably
present. Therefore, the act does its part in ensuring that unreasonable or unregulated actions of
competition do not infringe on the borders of IPR laws. However, this provision is not
satisfactory in guaranteeing the sustenance of IPR protections granted in market structures.
On the other hand, IPR laws such as the Trade Marks Act or Copyright Act or Patent Act do
have powers that outweigh the powers granted to the Competition Act when it comes to matters
of an abuse of IPR in India. Even in matters of Competition Law being infringed by IPR,
Intellectual Property Laws seem to exercise an upper hand. For instance, in the Patent
Amendment Act of 2005 allows for the curtailment of license for any anti-competitive
arrangement in India that may arise out of the exercise of a patent owner. In this regard also,
the role of the Competition Commission is negligible. In order to ensure optimum efficiency,
transparency and impartiality; a mutual and equitable union of the two acts would be the most
27
The Competition Act, 2002, § 3(5), No.12, Acts of Parliament, 2002, (India).
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viable solution. In order to stand at an equal footing; Competition Law needs to have the power
to exercise more control over situations where market abuse due to IPR may occur.
Therefore, even though is it popularly believed and established that IPR and Competition Law
act as conflicting areas of law with contrasting objectives; it is vital for them to function in
synchronisation to each other in order to bring about equilibrium and balance in market
structures.
SUGGESTIONS AND CONCLUSION
As we have sufficiently discussed the clashes in the two laws, it is equally important to keep
in mind an alternate perceptive that is brought about with an interplay of these laws. This
alternative approach seeks to establish the fact that in some cases, IPR and Competition Law
can also facilitate the role of each other. IPR introduces novel and innovate products in the
market by protecting and promoting these “expressions” and “ideas” behind them. In
furtherance of this, a diverse entry of new products in the market space only enhances and
advances competition. This competition is brought about in the sense that market players would
endeavour and aim to create the best products among these diversifications in terms of price,
quality, novelty, innovation, utility etc. in order to sustain their position in the market.
Through this paper, we have closely analysed the nexus between IPR and Competition Law in
market structures. This nexus is very apparent and can be detected over several industries such
as Media, IT, Health, Design etc. We have also analysed deeply the issues of pharmaceutical
industries and competitive commercials that play a significant role in contemporary times. The
laws surrounding these issues are ambiguous and not well-equipped to handle the dichotomy
that arises out of an inevitable interplay of the two laws. The underlying concept behind all
these issues is that the conflicting objectives and intentions behind the execution of the two
laws may mutually obstruct the exercise of the other. While IPR carves a niche in the market
to allow industries to protect their innovations, discoveries, exceptions etc.; Competition Law
attempts to break this dominance by placing everyone at an equal footing in the market space.
This interplay has been a subject of ample discussion and debates over the years as it is
commonly understood that a continuing conflict may result in the nullification of one of the
laws. However, through an in-depth research and analysis in this paper, the authors have
understood to acknowledge the alternate relationship that also exists between the two laws.
This alternate relationship attempts to establish the fact that a proper exercise and
Page | 46
implementation of the laws does not lead to a striking down of any law but a definitive
facilitation of both laws. IPR, in a way promotes market competition and this very balance is
what legislations, practitioners and market players must endeavour to strike in order to achieve
a market space that not only consists of innovation, diversity, and novelty, but also exercises
and promotes invigorating and healthy market competition.
At the end of the day, whether the two laws are friends or foes is a question that will remain
arguable. The question over whether IPR laws obstruct market competition or Competition
Laws threaten IPR protections would always be a mutually detrimental impact on the two laws.
However, the problem lies not with the existence of the two laws, but its rightful exercise.
Though this inherent dichotomy ingrained in the roots and sources of the two laws may be
conflicting, a balanced co-existence is the best way forward, and this is what legislations,
judicial courts, policy formulators, legal practitioners and market players must unanimously
and continually seek to achieve.
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SAMIR AGARWAL V. COMPETITION COMMISSION OF INDIA: THE SUPREME
COURT OF INDIA SETS STRAIGHT THE LOCUS STANDI REQUIREMENT BEFORE
THE CCI
Pranjali Sahni & Souradeep Mukhopadhyay*
ABSTRACT
The question of locus standi to approach the Competition Commission of India (‘CCI’) has
remained unclear, as the CCI and the National Company Law Appellate Tribunal (‘NCLAT’)
took divergent opinions on this aspect. While the latter suggested that only persons who have
directly suffered competitive injury can approach the CCI, the former was of the view that all
persons should be allowed to bring information to the CCI irrespective of whether they
personally suffered the injury or not. The Supreme Court of India in Samir Agrawal v.
Competition Commission of India has put this debate to rest, by holding that the proceedings
before the CCI are ‘in rem’. The Apex court held that no person should be prevented from
approaching the CCI or the NCLAT, thereby broadening the scope of locus standi in
competition law matters. While this judgement settles the question of locus standi, and
reinforces the ‘public interest’ objective of competition law in India, it fails to address the
consequent issue of increasing number of groundless and frivolous claims before the CCI. This
article analyses the concern of frivolous actions that lead to abuse of the competition law
process and further attempts to explore the question as to whether the CCI has the power to
impose costs on such miscreants.
Key Words: NCLAT, CCI, Competition Law, Public Interest objective.
Ms. Pranjali, an alumnus of Rajiv Gandhi National University of Law, having completed her Masters in Law
from King’s College (London), is currently an Assistant Professor of Law at Chirst University (Delhi-NCR); Mr.
Souradeep, having pursued B.A. L.L.B (Hons.) from Rajiv Gandhi National University of Law, is a Senior
Associate with the litigation team at Anand & Anand.
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EDITION IX DECEMBER. 2021
INTRODUCTION
The doctrine of locus standi1 or the traditional approach to ‘standing’ is meant to “confine
access to the judicial process only to those to whom legal injury is caused or legal wrong is
done”.2 The doctrine is rooted in public policy. It is meant to prevent groundless and frivolous
actions by persons with no legal interest in the proceedings. While the approach toward locus
standi in conventional civil suits has remained rather consistent over the years, and much
judicial time has been spent on dilating over the changing requirements of locus standi in cases
where constitutional issues and vindication of public rights are in question before a writ court.
A degree of uncertainty hitherto existed over the locus standi requirement to approach the
Competition Commission of India (CCI) against alleged anti-competitive practices in violation
of the Competition Act, 2002 (‘the Act’). The Apex Court, however, in its recent decision in
Samir Agrawal v. Competition Commission of India,3 has adduced much needed clarity to the
issue.
Section 19(1) of the Act lays down three ways in which an enquiry may be initiated by the CCI
into anti-competitive agreements and abuse of dominant positions, as prohibited under Sections
3 and 4 respectively, namely (i) on its own motion; (ii) on information received from a person,
consumer or their association or a trade association or (iii) by a reference made by the Central
or State Government or a statutory authority. The controversy as to locus standi, however, has
been limited to Section 19(1)(a), which allows the CCI to initiate an enquiry based on
‘information’ received from ‘any person, consumer or their association or trade association’.
In Re: Samir Agrawal and ANI Technologies and Ors., an advocate filed information, in his
personal capacity, with the CCI, alleging price-fixing and anti-competitive agreements between
cab aggregators, Ola and Uber and their drivers in violation of Section 3 of the Act. The CCI
delved into the merits and found that no prima facie case had been made out for ordering a DG
1
S.P. Gupta v. Union of India, AIR 1982 SC 149, para 14, “The traditional rule in regard to locus standi is that
judicial redress is available only to a person who has suffered a legal injury by reason of violation of his legal right
or legal protected interest by the impugned action of the State or a public authority or any other person or who is
likely to suffer a legal injury by reason of threatened violation of his legal right or legally protected interest by any
such action. The basis of entitlement to judicial redress is personal injury to property, body, mind or reputation
arising from violation, actual or threatened, of the legal right or legally protected interest of the person seeking
such redress”.
2
People’s Union for Democratic Rights & Ors. v. Union of India & Ors, AIR 1982 SC 1473.
3
Samir Agrawal v. Competition Commission of India, (2020) SCC OnLine SC 1024.
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investigation against the cab aggregators, holding that there was no evidence of cartelization
or anti-competitive agreements between the cab aggregators and the drivers, or drivers inter se.
The CCI did not find sufficient basis for allegations of price discrimination in view of the fact
that the informant had not made allegations under Section 4 of the Act.4
Aggrieved by the CCI order, the informant appealed to the NCLAT,5 which did not only uphold
the order of the CCI on merits, but went further to hold that the informant had no locus standi
to approach the CCI, opining that “any person” in Section 19(1)(a) must be read to mean any
person whose legal rights have been invaded by the alleged anti-competitive conduct. Since
the informant had not pleaded unfair price fixation meted out to himself, the NCLAT held that
the action was not maintainable.
This decision of the NCLAT sought to considerably reduce the scope of Section 19(1)(a),
imposing an additional requirement of legal injury for a person to approach the CCI, and was
notably in variance with some earlier decisions of its predecessor, the Competition Appellate
Tribunal (COMPAT), which had taken a liberal stance with respect to standing; for instance,
in Shri Surendra Prasad v. Competition Commission of India,6 it had explicitly held that the
Parliament has not provided any qualification for the person who wants to file an information
nor any condition which must be fulfilled before an information can be filed under Section
19(1)(a).7
Interestingly, despite the NCLAT’s ruling in Samir Agrawal, the CCI continued to entertain
complaints by informants who had not suffered any personal injury or harm. For instance, In
Re: Harshita Chawla & WhatsApp Inc., Facebook Inc., 8 the CCI held that in light of the
objectives of the Act laid down in the preamble, the commission is expected to investigate
cases involving competition issues in rem, rather than acting as a mere arbiter to ascertain facts
and determine rights in personam.9 Notably, the CCI had taken a similar view in earlier actions
as well, such as In Re: Reliance Agency and Chemists and Druggists Association of Baroda &
4
In re: Samir Agrawal and ANI Technologies Pvt. Ltd., Uber India Systems Pvt. Ltd., Uber B.V., Uber
Technologies Inc., (2018) SCC CCI 86.
5
Supra note 82 at 16.
6
Shri Surendra Prasad v. Competition Commission of India, Appeal no. 43 of 2014.
7
id., at 22
8
In re: Harshita Chawla and WhatsApp Inc., Facebook Inc., Case no. 15 of 2020.
9
id., at 50.
Page | 50
Others10 where it had observed that the commission is more concerned with the fair functioning
of the market and the motives with which the informant has come to the commission is
subservient to that objective.11 Therefore, a situation had arisen where the CCI and the NCLAT
were at loggerheads on the crucial issue of locus standi, leading to inconsistencies and a lack
of certainty.
THE APEX COURT PUTS THE DEBATE TO REST
The law with regard to locus standi, which was uncertain because of the divergent views
expressed by the CCI and the NCLAT, has finally been set straight by the Supreme Court
(hereinafter “the SC”) in Samir Agrawal v. Competition Commission of India.12 While the case
was straightforward on merits, and the Apex Court concurred with the CCI and the NCLAT in
concluding that no prima facie case for a DG investigation had been made out by the informant,
the divergent opinion of the CCI and NCLAT on the issue of standing was evident, as Sri Balbir
Singh, learned ASG appearing on behalf of the CCI, submitted that he supported the right of
the informant to approach the CCI with information.13
While determining the issue, the SC drew on the wide definition of ‘person’ under Section 2(l)
of the Act, which covered individuals without limitations, and every juridical person. The SC
contrasted this with Section 2(f) which defines ‘consumer’ as persons who buy goods for
consideration, or hire or avail of services for a consideration.14 Noting that the definition of
‘person’ is much wider than that of ‘consumer’, and the legislature had intentionally allowed
‘any person’ or ‘consumer’ to move the CCI under Section 19(1)(a), the SC found no reason
to not adopt a literal interpretation of the clearly-worded provision or to qualify ‘any person’,
when no such intent was visible in the statute. On the contrary, the Court noted that the
legislator had amended the Act in 2007 and had replaced the word ‘complaint’ with
‘information’, evincing that the Parliament’s intent was to widen the jurisdictional scope of the
CCI. This was also supported by the Report presented by the Standing Committee of Finance,
in 2006, before the Lok Sabha on the Competition Amendment Bill, 2006, which explained
that the amendment to Section 19(1) was in-line with the CCI’s role as an expert body which
10
In re: Reliance Agency and Chemists and Druggists Association of Baroda & Others, Case no. 97 of 2013.
11
id., at 96.
12
Supra note 3.
13
id., at 10.
14
id., at 13.
Page | 51
is expected to act as a market regulator and to prevent anti-competitive practices in the

country,15 stating:
The term information is wider and has an inclusive meaning. Even a complaint may be treated
as information and action taken. Also, this change would enable the Commission to inquire
into any information received on contravention of provisions of the Act, instead of only on
receipt of a complaint. In fact, the ability to act on information gives CCI a better articulated
regulatory role.16
While a complaint could only have been filed by a complainant, i.e., the aggrieved person;
information can be given by any person, irrespective of whether he himself suffered any
competitive injury. The SC observed that this substitution signifies that “the proceedings under
the Act are proceedings in rem which affect the public interest”.17 This is further supported by
the amendment in Section 35, which replaced ‘complainant or defendant’ with ‘person or
enterprise’, thereby making room for the informant to appear either in person or through its
agents before the CCI. Therefore, in furtherance of the 2007 Amendments that have thrown
light on the legislative intent behind the Act, the Supreme Court held, “…the CCI performs
inquisitorial, as opposed to adjudicatory functions, the doors of approaching the CCI and the
appellate authority, i.e., the NCLAT, must be kept wide open in public interest, so as to subserve
the high public purpose of the Act”.18
It may also be noted that it had been agitated before the SC that the informant, who has suffered
no individual injury, could not maintain an appeal before the NCLAT as he was not a ‘person
aggrieved’ within the meaning of Sections 53B and 53T of the Act. Reject the aforesaid
contention, the SC held that the ‘person aggrieved’ could not be interpreted narrowly in context
of the Act. It also noted that even Sections 53B and 53T referred to “any person aggrieved”
stressing that any person who brings information before the CCI could appeal against an
adverse order of the CCI refusing to act upon the information.19
15
Ministry of Corporate Affairs, Competition Amendment Bill 2006, Standing Committee of Finance 44th Report,
para 7 (2006).
16
id., at 36.
17
Supra note 3 at 14.
18
id., at 22.
19
Id at para 20.
Page | 52
The judgement of the Apex Court settles the law relating to locus standi for approaching the
CCI and appealing to the NCLAT, and appears to be in-line with the legislative intent to allow
all persons to have standing before the CCI with respect to any information alleging anti-
competitive conduct, irrespective of whether that person suffered any harm personally or not.
THE LACUNAE: WILL FRIVOLOUS, VEXATIOUS AND MALA FIDE ACTIONS FLOOD THE GATES
OF THE CCI?
The goal of competition law in India is to facilitate maintenance of healthy competition in the
market. In order to achieve that purpose, it is important that the scope of locus standi to
approach the CCI be broadened in light of the ‘in rem’ nature of proceedings before the CCI
and the public interest objective of the Competition Act. However, it is equally important to
keep frivolous and vexatious actions meant to abuse the process of law at bay. With respect to
the 2007 Amendments which broadened the scope of ‘standing’ before the CCI, Ms. Pallavi
Shroff, stated before the Standing Committee of Finance Report on the Competition
Amendment Bill, 2006, that, “This may open the floodgates for frivolous litigation which the
companies may have to defend at great expense.”20
There are several factors that can be considered by the adjudicating authority to determine the
‘frivolousness’ of a claim, such as whether the lawsuit/information was objectively baseless in
the sense that no reasonable litigant could realistically expect success on the merits, 21 whether
the action was objectively and manifestly unfounded, whether the motive behind the litigation
was to eliminate competition etc.22
Keeping thation for frivolous claims in mind, the SC in Samir Agrawal noted that Section 45
was a sufficient deterrent against persons who provide information recklessly or with mala
fide, as it allows the CCI to penalise any false statements or omissions of material facts with a
penalty which may extend up to Rs. 1 crore and with a broad power to “pass other such orders
as it deems fit”.23 However, it seems unlikely that this provision will be available in case of
‘frivolous’ information as opposed to ‘false’ information. Furthermore, the amount of the
20
Supra note 15, para 37.
21
Professional Real Estate Investors v. Columbia Pictures Industries, 508 U.S. 49 (1993).
22
ITT Promedia v. Commission; Case T-111/96.
23
Supra note 3 at 15.
Page | 53
prescribed fees required to be filed along with a complaint under Sections 3 or 4 is too meagre
to act as significant deterrent for frivolous actions.24
The second aspect that the Supreme Court relied upon to support its stance was judicious
imposition of costs. Justice Bowen in Cropper v. Smith said, “I have found in my experience
that there is one panacea which heals every sore in litigation and that is costs”.25 The provision
for costs is intended to achieve many goals,26 one of which is, as pointed out by the Supreme
Court in Vinod Seth v. Devinder Bajaj, “It should act as a deterrent to vexatious, frivolous and
speculative litigations or defences. The spectre of being made liable to pay actual costs should
be such, as to make every litigant think twice before putting forth a vexatious, frivolous or
speculative claim or defence.”27 The latest trend of Indian courts has been to order exemplary
costs on those abusing the process of law by instituting mischievous and vexatious proceedings,
as was observed in a recent Bombay High Court ruling where costs of Rs. 25 lakhs were
imposed.28 The court also remarked in the instant case that such frivolous claims amount to an
“unconscionable waste of very, very scarce judicial time”,29 and that the parties must remember
that “courts are not playgrounds, and litigation is not a pastime”.30
However, the more pertinent question is whether the Competition Act has any provision
granting the CCI the power to impose costs? It is worth noting that no provision in the Act,
Rules or Regulations talks about imposition of costs by the CCI on the informant for bringing
in frivolous complaints. In fact, the erstwhile Section 26(3),31 which did grant CCI the power
to impose costs when no prima facie case is made out, has now been removed. It seems
reasonable to conclude that the cause for such repeal was to avoid a chilling effect on the filing
of bona fide information with the CCI by informants fearing imposition of costs. Since
proceedings under the Competition Act are considered to be in rem, and are meant to be in
24
Competition Commission of India (General) Regulations, 2009 (as amended in 2019), regulation 49; Rs. 5000
for individuals or HUF, Rs. 10, 000 for NGOs, consumer association, cooperative society or trust, Rs. 40,000 for
a firm or company having turnover of up to Rs. 2 crores, Rs. 1 lac for firm or company having turnover above Rs.
2 crores and up to Rs. 50 crores, and Rs. 5 lacs for all other cases.
25
Cropper v. Smith, (1884) 26 CH. D. 700 (CA).
26
ustice P.V. Reddi, Costs in Civil Litigation, 240th Report of the Law Commission of India, para 2.6 (2012),
available at https://lawcommissionofindia.nic.in/reports/report240.pdf.
27
Vinod Seth v. Devinder Bajaj, MANU/SC/0424/2010, 23(a).
28
Fin Financial Services Pvt Ltd v. Multi-Commodity Exchange of India Ltd., Interim application no. 247 of 2021
in Commercial Suit No. 67 of 2015.
29
Id at para 17.
30
Id at para 19.
31
Now deleted by the Competition Amendment Act, 2007
Page | 54
public interest, the Parliament must have considered it best to take away the CCI’s power to
impose costs on the informant, while retaining a provision for directing enterprises to pay costs
under Section 27(e) after the CCI finds a violation of Sec. 3 or 4 of the Act.
While, unless provided for specifically, costs of proceedings are usually at the courts’
discretion,32 and the Courts have allowed imposition of costs in civil suits33 even before an
amendment to the Code of Civil Procedure inserted Section 35A specifically dealing with
costs,34 it is unlikely that the same privilege would also extend to the CCI. This is because the
CCI is a quasi-judicial tribunal created, empowered and restricted by statute, even more so
when the Parliament has expressly amended the Act and removed the provision empowering
the CCI to impose costs on the informant.35
CONCLUSION
The decision of the Supreme Court in Samir Agrawal is jurisprudentially sound and consistent
with the legislative intent behind The Competition Act, 2002. It clarifies the locus standi
requirement to approach the CCI and the NCLAT, thereby reinforcing the role of the CCI as a
market regulator as opposed to a mere adjudicator of disputes qua parties. However, in light of
the relaxed locus standi threshold, the possibility of the CCI being overwhelmed by a large
number of frivolous proceedings, which can prevent the CCI from effectively performing its
functions, cannot be ruled out. Despite the Supreme Court’s observation that the CCI may
impose costs to keep such proceedings in check, the removal of the erstwhile Section 26(3) of
the Act through an amendment in 2007 casts doubt on the CCI’s ability to impose costs on
informants approaching the CCI with meritless claims. Therefore, the concern toward frivolous
and vexatious actions remains pertinent, given the low cost of filing information and the lack
of an express provision empowering the CCI to deter frivolous informant.
32
Lord Mackay of Clashfern, Halsbury’s Laws of England 414 (4th ed. Vol. 12).
33
Manindra Chandra Nandi vs. Aswini Kumar Acharjya, ILR (1921) 48 Cal 427, para 7.
34
Report by Law Commission of India, supra note 22, para 2.4.
35
See The Competition Amendment Act, 2007 [The Amendment replaced Sec. 26(3) and also removed Sec.
51(1)(b) which allowed the CCI to deposit costs received from parties in its ‘Competition Fund’].
Page | 55
THE SCOPE OF THE DIRECTOR GENERAL’S POWERS
Shourya Bhansali*
ABSTRACT
The Director General (DG) is empowered to investigate cases where the Competition
Commission of India (CCI) is of the opinion that there exists a prima facie case. The DG’s
power to investigate cases is provided by the Competition Act, 2002 along with the Competition
Commission of India (General) Regulations, 2009. However, the scope of the DG’s power to
investigate cases has often been a contentious issue before the Supreme Court and the High
Courts. The Competition Law Review Committee Report and the Competition Bill, 2020 has
recognised this issue and proposed changes in the Competition Act to settle the scope of
investigative powers of the DG. The Competition Act and Regulation provide wide powers to
the DG, which on some occasions, might violate the principles of natural justice. This article
argues that the Indian courts have time and again expanded the powers of the DG. The power
of the DG to investigate is compared with other government agencies empowered to
investigate. Further, the discretionary power of the DG to provide opportunity for cross
examination of evidence is examined vis-a-vis the rule of audi alteram partem.
Keywords: Investigation, Power, DG, Natural Justice, Cross-Examination.
INTRODUCTION
Section 26 (1) of the Competition Act, 2002 (“the Act”), 1 empowers the Competition
Commission of India (“CCI” or “the Commission”) to direct an investigation by the Director-
General (“DG”) on its satisfaction that there exists a prima facie case. The scope of the DG’s
The Author is a V year law student, pursuing B.B.A. L.L.B (Hons.) from Jindal Global Law School, O.P Jindal
Global University.
1
The Competition Act, 2002, No. 12, Acts of Parliament, 2003, s. 26 (1) (India).
Page | 56
power to investigate cases has been a controversial issue before the courts in India. The
Supreme Court and the High Courts have time and again laid down precedent and clarified the
scope of powers of the DG. The judicial decisions have often expanded the scope of such
powers. The scope of powers of DG to conduct investigation has also been recognised as an
issue by the Competition Law Review Committee (“CLRC”) in its 2019 Report. 2 The
Competition (Amendment) Bill 2020 (“the Bill”),3 proposes changes that seek to expand and
clarify the scope of the DG’s power. The Act and the Competition Commission of India
(General) Regulations, 20094 (“the Regulations”) confer sweeping powers to the DG, which
seem to compromise the principle of natural justice on some occasions.
This paper seeks to identify the scope of the DG’s powers to investigate anti-competitive
agreements. Through a detailed analysis of judicial decisions, this paper argues, firstly, that the
judicial decisions have expanded the scope of DG’s power. Secondly, a comparison of the DG’s
power with other government agencies empowered to investigate, shows that the power of the
DG is similar to the Enforcement Directorate, but is wider than that of the Police. Thirdly, the
discretionary powers of the DG to provide an opportunity for cross examination of evidence
may be violative of principles of natural justice. Lastly, it seeks to analyse the recommendation
of the CLRC Report and the Bill and thereby provide a holistic view of the scope of the DG’s
power.
POWERS OF DG UNDER THE COMPETITION ACT, 2002
Section 2(g) of the Act defines DG as a person appointed under section 16 (1) of the Act. The
DG is appointed by the Central Government for the “purpose of assisting the Commission”
under section 16 (1) of the Act.5 The DG assists the Commission by conducting investigation
into anti-competitive practises of enterprises. 6 The DG is responsible for conducting an
investigation, on the direction of the CCI.7 The DG is required to submit a report on his
findings within the period stipulated by the Commission.8 On receipt of the report from the
2
Ministry of Corporate Affairs, Report of the Competition Law Review Committee, Government of India.
3
The Competition (Amendment) Bill, 2020 (India).
4
The Competition Commission of India (General) Regulations, 2009, No. 2, Competition Commission of India
(India).
5
The Competition Act, 2002, s.26 (1), No. 12, Acts of Parliament, 2003, (India).
6
Id.
7
Id., s. 26 (1).
8
Id., s. 26 (3).
Page | 57
DG, if no contravention of provisions of the Act is made out, the Commission can close the
matter or pass any order it deems fit.9 The Commission is also empowered to direct further
investigation by the DG, where the report submitted by the DG recommends that there is no
contravention of the provision of the Act.10
Section 41 11 provides the duties and powers of the DG to investigate contravention of the
Act. The DG, during such investigation, by virtue of Section 41(2) read with Section 36 (2)12
of the Act, has the same powers as are vested in a Civil Court under the Code of Civil
Procedure, 1908. 13 The DG is further empowered by Section 41(3) read with Sections
240 and 240A of the Companies Act, 1956 to keep in its custody any books and papers of the
person/enterprise investigated against / into for six months and to examine any person on oath
relating to the affairs of the person/enterprise being investigated against / into and all officers,
employees and agents of such person/enterprise are also obliged to preserve all books and
papers which are in their custody and power.14
The Regulations also provide vast powers to the DG to investigate contraventions. Regulation
41 (1) empowers the DG to determine the manner in which evidence may be adduced. The
Regulations also provide the power to the DG to call parties for leading evidence by way of
affidavit or oral evidence.15 Further, the DG may allow the parties to cross-examine the person
giving the evidence.16 Hence, the Act read with the Regulations provide vast powers to the DG
to investigate anti-competitive behaviour of enterprises.
JUDICIAL DECISIONS
9
Id., s. 26 (6).
10
Id., s. 26 (7).
11
Id., s. 41.
12
Id., s. 36 (2).
13
The Code of Civil Procedure, 1908, No. 5, Acts of Parliament, 1908, (India).
14
The Companies Act, 1956, No. 1, Acts of Parliament, 1956 (India).
15
Regulations, supra note 4.
16
Id.
Page | 58
The Supreme Court and the High Courts have over time established precedents and clarified
the scope of DG’s powers.17 The scope of the DG’s investigative powers and the manner in
which the DG can exercise such powers has been a contentious issue since the introduction of
the Act. These judgements have dwelled into fundamental questions pertaining to increase the
scope of investigation.
The Supreme Court of India, in Excel Crop Care Ltd v. Competition Commission of India,18
adjudicated the matter triggered by a letter from the Food Corporation of India (“FCI”) to the
CCI. The letter alleged the existence of an anti-competitive agreement between manufacturers
of Aluminium Phosphide tablets with respect to a tender issued by FCI in 2009. The CCI passed
an order under section 26(1) of the Act, directing the DG to investigate the matter. Thereafter,
the FCI in another letter informed the DG about another tender in 2011, where the
manufacturers of Aluminium Phosphide tablets had boycotted the tender and violated section
3 (3) of the Act. The report submitted by the DG found it to be in contravention of the said
section. The manufacturers challenged the findings of the DG on the ground that the DG did
not have the authority to investigate matters that relate to the 2011 tender. The manufacturers
argued that the 2011 tender did not come within the purview of the investigation as it was not
covered by the order passed by the CCI under section 26 (1). Upon appeal, the Supreme Court
held that the DG would be well within its powers to investigate and analyse additional facts
during its investigation, subject to certain conditions. However, the court did not lay down any
general guiding principle regarding the power of the DG. The court observed that the scope of
the DG’s investigation would depend on the language of the order passed by the CCI. The order
passed by the CCI in this case was broad enough to allow investigation beyond the 2009 tender.
The DG during an investigation can “cover all necessary facts and evidence” to assess whether
there exist anti-competitive practises. The allegations made in the complaint would be the
starting point of the investigation. However, if other facts get revealed during the course of
inquiry, then the DG would be within his powers to include it in his report. The Supreme Court
in this case refused to restrict the scope of the investigation as it would defeat the purpose of
the Act, which essentially entails prevention of practices having adverse effect on competition
17
Dhruv Rajain, Siddhant Khetawat and Shreya Joshi, Clipping the DG’s and CCI’s Investigative Power: Recent
Trends, (2020) PL (Comp. L) January 75.
18
(2017) 8 SCC 47 (India).
Page | 59
and to promotion and sustenance of competition in markets. The court emphasised that a
restrictive interpretation of the DG’s powers would negate the purpose of investigation.
The Madras High Court in Hyundai Motor India Ltd v. Competition Commission of India,19
followed the position adopted by the Supreme Court in Excel Crop. It observed that the scope
of DG’s investigation is not limited to the allegations contained in the original complaint and
he is empowered to investigate other facts that are revealed while the investigation is carried
out. The issue came up before the court after a complaint was filed with the CCI under sections
3 and 4 of the Act, alleging anti-competitive practices and abuse of dominance against three
automobile manufacturers. The CCI directed the DG to investigate the matter under section 26
(1) of the Act. According to the order, the DG submitted a report to the CCI requesting its
approval to expand the scope of the investigation as other car manufacturing companies were
engaging in similar activities. The CCI passed an order permitting the DG to expand the scope
of the investigation. Subsequently, the DG ordered an investigation against Hyundai and an
inspection of its records. The order of the CCI and the notice of inspection were challenged by
the petitioner. The court held that the DG does not have suo moto powers of investigation.
However, in the present case the DG did not act suo moto but initiated inquiry under the
complaint. The court also observed that, under section 36 of the Act, the DG has been conferred
with the powers of issuing commissions for the examination of witnesses, summoning and
enforcing the attendance of any person and discovery and production of documents. Thus, in
this case the inspection of documents by the DG was held to be valid in law. It was also opined
that the CCI is required to form a prima facie opinion for ordering investigation under section
26 (1) after receipt of information. If the additional information is substantially the same as
covered by previous information, then the Commission is not required to form a prima facie
opinion for ordering investigation. The Madras High Court relied on the decision of the
Supreme Court in Excel Crop by holding that the scope of investigation by the DG is not limited
to the allegations made in the original complaint.
In Cadila Healthcare Ltd. v. Competition Commission of India,20 the division bench of the
Delhi High Court was faced with the issue of whether the DG had the power to investigate
Cadila Healthcare without a separate order under section 26 (1) authorizing such investigation
19
Competition Appeal (AT) No. 6 of 2017 (India).
20
2018 SCC OnLine Del 11229 (India).
Page | 60
against it. In the instant case, Cadila Healthcare was added as a party based on a DG report.
The petitioner filed a writ petition alleging that the DG could not have investigated the
petitioner without a separate order under section 26 (1). The court held that the DG’s power is
not limited by a remand or restricted to the matters that fall within the complaint. It observed
that if other facts reveal that persons or enterprises had entered into anti-competitive
agreements, the DG would be well within his powers to include those as well in his report.
Therefore, the investigation against the petitioner by the DG, without CCI’s prima facie
opinion, is valid.
The case of Competition Commission of India v. Grasim Industries Ltd,21 came up before the
Delhi High Court for adjudicating the issue of the scope of investigation by the DG. The case
was an appeal against the order in Grasim Industries Ltd. v. Competition Commission of India22
passed by a single judge of the Delhi High Court. The order held that the direction of the CCI
to investigate a violation of section 3 (3) did not empower the DG to investigate a potential
violation under section 4. The division bench overruled the judgment passed by the single
bench. The court held that the prima facie opinion formed by the Commission under Section
26 (1) cannot limit the opinion of the DG upon investigation. The court observed that the order
of the Commission under Section 26 (1) only triggers investigation by the DG, it does not
restrict the power of the DG to examine only subject matter of the original complaint. The role
of the Commission at the stage of issuing directions to the DG under Section 26 (1) of the Act
is not intended to restrict the opinion that may be formed by the DG upon such investigation.
The investigation by the DG cannot be restricted because the information before the CCI does
not pertain to additional facts.
The Supreme Court’s ruling along with the decisions of other High Courts has expanded the
scope of DG’s power to investigate. It is pertinent to note that the courts have emphasised that
a restrictive interpretation of the DG’s investigative powers would defeat the purpose of
investigation. However, the powers of the DG are still restricted by the order of the
Commission which directs investigation. This is to ensure that the DG does not have absolute
power to carry out investigation against unrelated parties. In the next section, a comparison of
21
22
Page | 61
the DG’s power with other government agencies empowered to investigate portrays that the
power of the DG is similar to the Enforcement Directorate but is wider than that of the Police.
INVESTIGATION BY OTHER GOVERNMENT AGENCIES
To examine the scope of DG’s power to investigate, it is pertinent to compare the DG’s power
with that of other investigative agencies. The DG is conferred with wider powers to investigate
matters than the Police under the Code of Criminal Procedure. The Police do not have the
power to record evidence on oath, but the DG has been vested with such a power. The DG can
record a statement on oath of witnesses summoned during investigation.23 The said witnesses
are also allowed to be cross-examined on the discretion of the DG even by the informant or
claimant. The oath of the witness and their cross-examination can become evidence as part of
the report of the DG, as it forms the basis of further proceedings before the CCI. In Google Inc.
and others v. Competition Commission of India and Another,24 the court had observed that the
powers of the DG to investigate matters is far wider than that of Police under CrPC.
The Enforcement Directorate (ED) is the law enforcement agency for enforcing economic laws
and fighting economic crimes in India. The ED is mandated to enforce two fiscal laws, the
Foreign Exchange Management Act, 199925 (FEMA) and the Prevention of Money Laundering
Act, 200226 (PMLA). Under FEMA, the ED investigates contraventions of the Act’s provisions
and imposes the fine. Section 37 of FEMA empowers the Director and Assistant Director of
Enforcement to carry out an investigation for any contravention of the provisions of the Act.
While investigating contravention the officers of ED have the same powers that have been
conferred upon the income tax authorities under the Income Tax Act, 1961 (“IT Act).27 Section
131 of the IT Act vests the power of a civil court under the Code of Civil Procedure upon the
income tax authorities. The Director and Assistant Director of Enforcement are also conferred
with such powers. Thus, during investigation, the ED has the power of summons, search and
seizure, discovery and inspection, and production of books and other documents. While
investigating the offences under PMLA, the ED has the power to seize and confiscate properties
23
Supra note 4 at R. 41(2).
24
WP (C) No. 7084/2014 (India).
25
Foreign Exchange Management Act, 1999, No. 42, Acts of Parliament, 1999, (India).
26
Prevention of Money Laundering Act, 2002, No. 15, Acts of Parliament, 2002, (India).
27
Income Tax Act, 1961, No. 43, Acts of Parliament, 1961, (India).
Page | 62
related to money laundering.28 It also has the power to freeze and attach property. The ED also
has the power to arrest offenders.
The comparison between the power of the DG vis-à-vis the Police and the ED elucidates the
true scope of the DG’s powers. The DG’s power to conduct inquiry is far more sweeping and
wider than the power of investigation conferred on the Police under the Code of Criminal
Procedure. Whilst, investigative power of the DG under the Act and the ED are similar since
both are conferred with the power of a civil court under Code of Civil Procedure, the power of
the ED while investigating offences under PMLA are wider since they are conferred with the
power to arrest offenders.
THE PRINCIPLES OF NATURAL JUSTICE V. DG’S DISCRETION
Section 36 of the Act provides that the CCI should be guided by the principles of natural justice
while discharging its functions. However, it was not clear as to whether the term “function”
includes an investigation by the DG as well. This dilemma was resolved by the CCI in an
order,29 where it held that the investigation by the DG is within the meaning of “function”
under section 36 (1) of the Act. In Board of Control for Cricket in India v. Competition
Commission of India, 30 the Competition Appellate Tribunal (“COMPAT”) overturned the
CCI’s order in Nirmal Kumar Manshan, citing lack of due process and procedural fairness with
respect to the investigation. It also observed that the Commission must comply with the
principles of natural justice which includes the rule of Audi alteram partem.
Regulation 45 (5) of the Regulations states that “if the Commission or the Director General, as
the case may be, directs evidence by a party to be led by way of oral submission, the
Commission or the Director General, as the case may be, if considered necessary or expedient,
grant an opportunity to the other party or parties, as the case may be, to cross examine the
person giving the evidence.”31 The CCI and the DG have discretionary power to grant such
28
Supra note 26 at S.2(1)(d).
29
Nirmal Kumar Manshan v M/s Ruchi Soya Industries Ltd, Case No. 76 of 2012 (India).
30
Appeal No. 17 of 2013 and I.A. No. 26 of 2013, dated 23-02-2015.
31
Supra note 4.
Page | 63
opportunity. Therefore, denying cross examination could violate the rule of Audi alteram
partem.32
In MP Chemists and Distributors Federation33 the court observed that where the information
is supplied by a party based on personal knowledge, the other party may be allowed to cross
examine the party giving the evidence. Whereas, when the information given by a party is
based on documents, cross examination may not be required because in such case, it can be
rebutted by way of an affidavit. In Cadila34 the court had observed that the discretion to permit
or refuse cross examination of a witness has to be exercised judiciously. The court further noted
that a mere dissatisfaction does not imply judicious exercise of discretion.35
Cross examination is an important part of the fact-finding process, founded upon the principle
of Audi alteram partem. The DG, while investigating, takes into account the statements made
by the parties and records evidence. Upon investigation, the DG prepares a report which is
submitted to the CCI. Once the report is prepared, the parties can file objections. If a party is
denied the opportunity to cross examine evidence during investigation, they are deprived of the
opportunity to produce evidence in rebuttal. The report of the DG made without hearing the
other party, or made without recording the rebuttal of the other party, could reflect an incorrect
finding or conclusion.36 Further, while adjudicating disputes, the Commission relies upon the
findings of the DG recorded in the report. Therefore, by not affording the opportunity to cross
examine during the stage of investigation, it could lead to gross violation of principle of natural
justice.
The DG’s role acts as the investigation arm of the CCI. Natural justice during the investigation
stage, as against the adjudication stage, could make the process of investigation cumbersome
and meaningless. The conclusion of the DG’s investigation is not binding on the parties. So,
giving the discretion of cross examination in the hands of the DG may not be violative of
32
Anushka & Nishtha Khandelwal, The Curious Case of Cross-Examination: Right v. DG's Discretion, The
Competition Forum, (January 17, 2020), available at https://www.thecompetitionforum.com/post/the-curious-
case-of-cross-examination-right-v-dg-s-discretion.
33
Madhya Pradesh Chemists and Distributors Federation v. Madhya Pradesh Chemists and Druggist Association,
Case No. 64 of 2014 (India).
34
Supra note 20.
35
Id.
36
Kunal Kumar, CCI and DG’s powers under the Competition Act and the Principles of Natural Justice,
IndiaCorpLaw, (March 11, 2018), available at https://indiacorplaw.in/2018/03/cci-dgs-powers-competition-act-
principles-natural-justice.html.
Page | 64
principles of natural justice if such power is exercised judiciously. Further, cross examination
of every witness during the investigation stage would become a very lengthy process. The
parties would still have sufficient opportunity to make their case as the final verdict vests with
the CCI.
CLRC REPORT AND THE COMPETITION BILL, 2020
The Competition Law Review Committee (“CLRC”) was set up by the Ministry of Corporate
Affairs to review the existing competition law framework and to ensure that the Act is in sync
with the changing business environment and international practises. The CLRC submitted its
findings in a Report and suggested several changes to the competition law framework in India.
The CLRC Report recommended few changes with respect to the investigation carried out by
the DG and the extent of its powers.37 Inter Alia, the Report recommended certain changes in
the inquiry procedure under section 26 of the Act. The CLRC recommended that on the
direction of the CCI, the DG should be empowered to conduct a supplementary investigation
where the CCI believes that further investigation is required.
The Report also clarified the powers of the DG under section 41. It observed that there is a
need to codify the powers of the DG regarding search and seizure. The DG is conferred with
the power to search and seize by virtue of sections 240 and 240A of the Companies Act, 1956.38
However, the said Act has been replaced by the Companies Act 2013.39 Sections 217 and 220
of the Companies Act 2013 correspond to Sections 240 and 240A of the Companies Act, 1956.
However, the provisions of the 2013 Act do not expressly provide the requirement of
authorisation to conduct search and seizure. Thus, the Report recommended codification of the
conduct of search and seizure under section 41 of the Act to bring clarity on the powers of the
DG. The Report also recommended merger of the DG’s office with the CCI to bring
accountability. The recommendation seeks functional autonomy of the DG who would report
to the chairman of the CCI.
37
38
39
Page | 65
The Competition (Amendment) Bill, 2020,40 seeks to bring major changes to the competition
law framework in India. The Bill, in line with the CLRC Report, aims to merge the office of
the DG as an investigative branch of the CCI. Currently, the DG is not answerable to the CCI,
but to the Central Government. The Bill provides wider powers to the DG. It introduces the
provisions under which if a person fails to produce documents, or fails to appear before the
DG, they can be sent to imprisonment for a term extending to six months or can be fined up to
one crore rupees. The Bill also extends the power of the DG under investigation to investigate
third parties. The broad powers of the DG are likely to be amped up through the Competition
41
Bill.
CONCLUSION
The vast and sweeping power of the DG is required for unhindered and flawless investigation.
The Supreme Court, in Excel Crop, rightly stated that a restrictive view of the DG’s power
would defeat the purpose of the Act. The courts in India have relied on the decision of the apex
court in Excel Crop to expand the scope of DG’s investigative powers. The investigative power
of the DG is far more sweeping than that of the Police. The power to investigate cases is similar
in case of the DG and the ED. On some accounts, the power of the ED is more than that of the
DG.
The link between cross examination and the principles of natural justice cannot be disregarded.
While a right of cross examination could be misused to delay the proceedings, the complete
denial thereof would violate the principles of natural justice. Thus, there is need to strike a
balance between the two. It is imperative for the lawmakers or the courts to lay down guidelines
for granting the opportunity for cross examination. The CLRC report and the Competition Bill
both seek to expand the horizon of the powers of the DG. However, neither the CLRC report
nor the Competition Bill recognises the violation of rule of Audi alteram partem by the
provisions of cross examination. Therefore, it is the author’s recommendation that the DG
should record his reasons for denying cross examination to the parties.
40
The Competition (Amendment) Bill, 2020 (India).
41
Ela Bali and Aditi Khanna, Scope of Director General’s Investigation under the Competition Act 2002, VI ICLR
(2021).
Page | 66
Merging the office of the DG with the CCI is significant change as the DG will be under direct
supervision of the CCI. The DG office would be brought into the main body of the CCI.
Presently, the DG is supervised by the CCI and has autonomy in conducting investigation.
After merging the office of the DG with the CCI, the CCI will have direct supervision and
control over the DG office. The appointment of the DG staff would also be done by the CCI.
Currently, the government appoints the DG and the DG staff which is susceptible to long
delays. The integration of the DG office with the CCI is in lines with certain international
competition regulators such as the European Commission as well as other domestic regulators
like SEBI, IRDAI, etc.
Page | 67
RETHINKING PLAGIARISM AS COPYRIGHT INFRINGEMENT: A LEGAL
DISCOURSE
Ashu Billy Manners Abang*
ABSTRACT
It is highly debated that plagiarism no matter its form may lead to copyright infringement.
Academics have for a very long time resolved that plagiarism is an ethical concept and thus
have treated it as mere dishonesty and not a legal concept. Copyright legislators at the same
time have taken stands with this ethical conception of plagiarism thus completely excluding the
concept of plagiarism as a subject matter of copyright laws. This has left a lacuna in the sphere
of copyright protection which plagiarists have sought to exploit to the highest extent possible.
It is therefore the aim of this paper to highlight circumstances where plagiarism may constitute
copyright infringement. To this end, this article will argue that Plagiarism may sometimes
constitute copyright infringement. While it is largely perceived as an ethical and academic
misconduct, it can also largely be a illegal act to the extent of copyright infringement. To this
end, this article intends to demarcate the boundaries of plagiarism and indicate when and
under what circumstances it may become copyright infringement. This article will demonstrate
that the usage of plagiarized materials and its dissemination can hugely interfere with the
economic and moral rights of authors, hence infringing his/her copyright. Although this article
argues that plagiarism may in certain circumstances constitute copyright infringement, the
researcher does not present plagiarism and copyright infringement as concepts that can be
used interchangeably. They are two separate concepts, howbeit that they have some few points
of intersection. It is these points of intersection which this article seeks to explore. For the
enhancement of this article, qualitative approach was undertaken, which involved an analysis
of the both primary and secondary data. The primary data used is in the form of legislations
and case law. While the secondary data are books, journals, articles, law reports and other
scholarly material. This article therefore recommends that the term plagiarism be redefined
The Author is a Paralegal at Midas Law Group in Kigali, Rwanda.
Page | 68
and its scope remapped so as to clearly point out the fine line between plagiarism and copyright
infringement.
Key words: Copyright, Intellectual Property Law, Plagiarism, Economic rights, Moral rights
of authors.
INTRODUCTION
The literary catalogue that has so far been presented on the subject of plagiarism has almost
succeeded in reducing plagiarism to a “copy and paste’’ issue, or the mere use of an author’s
words and ideas without due acknowledgement.1 Such an appraisal on the scope of plagiarism
permits intellectual transgressors to be looked upon as righteous men whose acts of
infringement is said to be out of the scope of plagiarism. 2 Demarcating the boundaries of
plagiarism, therefore, becomes not just a pertinent issue but an urgent one.
The most conceivably appropriate way of ascertaining the scope of something is through its
definition. However, the numerous copyright legislations in the world today have so far not
provided a definition to the word plagiarism. For this reason, the uniqueness of the scope of
plagiarism as has been observed in different writings, is not a standard subject or something
one could vouch for with certainty. The absence of a definition in the copyright legislations has
thrown the ball upon the whims of academic writers to so define and determine what plagiarism
means, in which case most of them are at variance.
Howbeit, for purposes of this dissertation, the researcher has adopted the definition postulated
by Miguel Roig 3 in his dissertation titled “Plagiarism and self-plagiarism detection in the
science: Definitions and cases, 2010’’4 Miguel defines plagiarism to mean the appropriation of
someone’s ideas, processes, images, design elements, data or other products of their creativity,
without giving appropriate credit. It therefore follows from this that plagiarism goes beyond
unethical or illegal use of words or texts. Plagiarism subsists in both literary and artistic works
1
A.B. Manners, (2019), Plagiarism and Copyright Law in Cameroon: A legal Appraisal, (Unpublished Masters
Dissertation), University of Dschang, Cameroon.
2
Id.
3
Miguel Roig, Plagiarism and self-plagiarism in the Sciences: Definitions and Cases, (2010).
4
Id.
Page | 69
and to some extent, scientific works also. Not just books, lectures, speeches and other forms of
writings, but even images, songs, music, paintings maps and many other artistic and literary
works could be plagiarized.
Another very pertinent issue which this paper seeks to expound on the question of the extent
of plagiarism that could amount to copyright infringement. In other words, how much or little
does one need to copy and pass off another’s work to be called a copyright infringer? It is true
that there is a difference between plagiarism and copyright infringement, but it cannot also be
denied that both concepts have some important points of intersection. It is these points of
convergence which this piece of writing seeks to explore, thereby giving it the required
attention.5
A. An Overview of the Concept of Plagiarism
The general conception of plagiarism is misappropriation or theft. According to Miguel defines

plagiarism to mean the appropriation of someone’s ideas, processes, images, design elements,
data or other products of their creativity, without giving appropriate credit. From his definition,
it can be deduced that for an act to amount to plagiarism, the following elements must be
available. Firstly, there must be an object, which can either be an idea, process, image, design,
elements, data or any other product of creativity. Secondly, the work must have been
appropriated or taken without authorization. Thirdly, the work must have been used without
acknowledging the author properly.
The above listed ingredients leave room for certain questions. One may be pushed to ask
whether intention constitutes an important ingredient for the act of plagiarism i.e., does the act
of plagiarism need to be premeditated. Plagiarism could be both intentional and unintentional.
It could be considered intentional when someone knowingly copies and passes off someone’s
work as an original work without acknowledgement. As per the MLA handbook for writers of
research papers,6 intentional plagiarism includes passing off an author’s materials as one’s own
which in actual fact are derived from other sources. This kind of plagiarism goes beyond merely
copying and pasting extracts of an author’s work. Practical instances of this could include a
5
Okere S, Etete A, Oluwalanu .S., Awareness of Plagiarism as Copyright Violation with Implications for
Intellectual Property education in tertiary learning, 3(2), Journal of Research and Development, (2017).
6
The Modern Language Association of America, 7 MLA Handbook for Writers of Research Papers, (2009).
Page | 70
plagiarist taking off the name of an author from his work and replacing it his or her own name7,
paying another person to write a scholarly work which is later on published in the name of the
plagiarist8. Intentional Plagiarism may also consist of copying from internet sources, like from
articles websites or other publications and failing to acknowledge the source9.
Plagiarism could also be unintentional. In this case plagiarism is not pre-meditated but is
committed because of ignorance or inadequate knowledge on citations or acknowledgement.
The most common cases are poor paraphrasing or inadequate or wrong citations.10 It is worthy
to note that whether or not there is intention to plagiarize, it does not suffice an excuse for the
commission of the act.
It follows from the above that the bone of contention when an act of plagiarism is committed
is authorship, since intent is irrelevant. The plagiarist claims to be the original author which
becomes contentious to the authorship of the original author.
CATEGORIZATION OF THE ACT OF PLAGIARISM
Generally, plagiarism has been concluded to mean literary theft only. However, research11 has
proven that artistic works could also be stolen and passed off illegally. This paper therefore
categorizes plagiarism into literary plagiarism and plagiarism of artistic works.
A. Literary Plagiarism
The appellation literary plagiarism is gained by an interpretation of Article 2(1) of the Berne
Convention12 which defines literary and artistic works. Books, pamphlets and other writings;
lectures, addresses, sermons and other works of the same nature, fall under the category of
plagiarism. Idea plagiarism, text and self-plagiarism fall under this category.13
7
Hossein Atrak, Intention Involvement in the Nature of Plagiarism, 1(1), International Journal of Ethics &
Society, 3, (2019).
8
Id.
9
Id. Note 6.
10
Id.
11
Mohd A. Mohd, Et. Al, 2nd Art and Design International Conference 2016, 391-400 (2016), DOI:10.1007/978-
981-13-0487-3_43.
12
Berne Convention 1886, Art 2(1).
13
Shobhna, plagiarism: an intellectual theft Retrieved from
http://www.legalservicesindia.com/article/284/Plagiarism.html (accessed 9-9-2018).
Page | 71
i. Idea Plagiarism
Idea plagiarism consists of using the ideas of an author without acknowledging the source of
idea of the idea.14 It is only ethical that academic efforts such as ideas, data and conclusion by
the author, when needed by another academician for his own work, be well acknowledged15.
Scientific research and inventions are mostly the type of works that fall under idea plagiarism.
Even though issues of idea theft are not protected under copyright law since copyright law only
protects the expression of ideas and not the ideas in themselves, patent law protects the rights
to exclude others from producing or using the inventor’s discovery or inventions for a limited
period of time.16 There is an exception to the principle of acknowledgement of ideas. Ideas of
common knowledge are not acknowledged.17 There are certain conventional ideas assumed to
be known by all and for such knowledge, no citation is needed. For instance, it is common
knowledge that New York is in the United States of America. It is common knowledge that the
First World War was fought from 1914 and ended in 1918.
ii. Text Plagiarism
“Copying a portion of text from another source without appropriate credit to its author.”18
Generally, text plagiarism is the most common form of plagiarism. Be it wrong citations; patch
work, direct plagiarism, paraphrasing without citations, failure to use quotations for verbatim
etc, all fall under text plagiarism. The globally accepted practice when using someone’s direct
words is to put such words into quotations and include a citation for such a text. Text plagiarism
may appear as one of the various forms as follows:
iii. Paraphrasing
To paraphrase means to reward a particular piece of work to your own with the meaning still
the same. To paraphrase does not amount to plagiarism per se, but it becomes plagiarism when
the user does not cite its source at all or the source is not properly cited. 19 This type of
14
Miguel Roig, “Avoiding Plagiarism, Self-Plagiarism, and other questionable writing practices: A guide to
ethical writing” (2nd Rev, 2015), Pp 30. At 4.
15
Id.
16
Jonathan Bailey, Plagiarism of ideas, www.plagiarismtoday.com (assessed on the 13-07-19).
17
18
Id., at 6.
19
Raimo, All types of plagiarism including examples, https://www.scribbr.com/plagiarism/types-of-plagiarism/,
(accessed 14/11/2018).
Page | 72
plagiarism is intentionally committed by the offender. Before committing such an act of

plagiarism for instance, a student believes that his supervisor or teacher will not be able to
detect if a few words and structures have been displaced.20
Patchwork Plagiarism
Most writers have given different names to this form of plagiarism, like mosaic plagiarism.
Even though similar to paraphrasing, it’s different all together. This is because unlike
paraphrasing where the plagiarist re-words a particular piece of work, giving it a new touch
and presenting it as an original idea, with patchwork plagiarism the plagiarist gets patches from
works belonging to different authors and fuse them to get a unique and new work21. In a simpler
way, this is when a plagiarist creates a write up by copying and pasting patches of texts and
ideas from here and there. Summarizing the main points and ideas from someone’s work
without proper citation also falls under this category of plagiarism.22
Direct Plagiarism
Many people, especially students are in the habit of copying and pasting directly from different
sources to their own works without properly acknowledging the source from which the
information is taken. This type of plagiarism is obvious. The words, sentences and even the
sentence structure are the same. Eliminating or swapping a few words does not excuse one
from direct plagiarism.23 The way of escape from direct plagiarism is to put the words, phrase
or sentences in a quotation if it must be used exactly in the original writing. After putting in
quotation marks, in-text citation should be provided otherwise the attempt to avoid plagiarism
goes in vain.24
Inaccurate Authorship
Most books, articles or journals are jointly written by two or more authors who generally have
equal rights as co-authors. This concept has really not been understood by most people,
20
ScanMyEssay, Types of plagiarism, https://www.scanmyessay.com/plagiarism/types-of-plagiarism.php,
(accessed 14/11/2018).
21
Raimo Streefkerk, Types of Plagiarism (with examples), available
at https://www.scribbr.com/plagiarism/types-of-plagiarism/.
22
Id.
23
Supra at note 19.
24
Id.
Page | 73
especially students. In the course of citing the source of information, students often leave out
the name of one or more of the authors. This is by and large an act of plagiarism.25 Sometimes,
citing just one or two authors when they are three in number is incomplete citation. Preferably,
if one author must be cited when the work was authored by more than one person, the
expression “et al” should be used after the name of the first author. This will be a clear
indication of the fact that the work was not written by just one author and it wipes out any
attempt to exclude the, from enjoying their right of authorship.
Wrong Citation
Citation is the key to be off the list of plagiarism. However, the citations must be correct. Wrong
citation is no citation at all making all the efforts to cite plagiarism if the referring is wrongly
done. Citing a non-existent source is also a common practice. Most times, some researchers
only discover in the middle of their work that certain sentences and statement don’t have any
acknowledge source or citation. To avail themselves, they are left with no option but a fake up
a situation which does not exist. A perfect example of this kind of plagiarism is when for
instance a law student creates a none existent case law to support his/her argument which in
actual fact does not exists. Another example is when researcher gives a false statistics or data
about a particular subject and attributes it to a fictitious author.
iv. Self-Plagiarism
Self-plagiarism can be tricky and frequently unintentional. Some writers refer to this type of
plagiarism as auto-plagiarism. 26 This occurs when an author reuses his previous published
works without giving credits. It sounds funny that an author may have to give credit to him or
herself but as a matter of ethical writing, it becomes a more serious issue. Each work is unique
and its content is copyrighted. Irrespective of whether the same person is the author, the work
has to be cited for integrity and even to the extent of avoiding copyright infringement. The
authors of all literary and artistic creations enjoy automatic copyright protection in their works.
But in practice, authors most work published in journals always sign a copyright agreement
25
Id.
26
Enago Academy, 8 most common types of plagiarism to stay away from,
https://www.enago.com/academy/fraud-research-many-types-plagiarism/, (accessed 13-11-18).
Page | 74
transferring their copyright to the journals.27 In such a cases, the writer remains the same but
the copyright in the work has changed hands. Republishing wholly or part of the work later on
becomes plagiarism and copyright infringement at the same time. Students are most likely not
always victims of this type of plagiarism. For example, resubmitting the same assignment
different times.
B. Plagiarism of Artistic Works
Art plagiarism is a category of plagiarism which is very unlikely for writers to acknowledge.
Perhaps the lack of recognition in artistic plagiarism is due to the fact that most people are
inclined to encounter cases of literary plagiarism, specifically writing. But on the other side of
the veil, is the world of artistic plagiarism where works of arts such as music, song, films,
videos, paintings etc. are plagiarized on a daily basis. This is the highest plight of art school
and it is for such reasons that they have recently embarked on writing a sensitization on this
subject. Uncountable notices have been made known recently on plagiarism of songs and
music, even though some of the cases are unreported.28 Others are instances where sketches,
paintings and even sculptures have been plagiarized29. The following forms of plagiarism will
be elaborated on in this paper:
i. Music Plagiarism
Music plagiarism is the use or close imitation of another author’s music while representing it
as one’s own original work30. Musical plagiarism can be seen in two respects. Firstly, a musical
idea could be plagiarized and secondly, the sample of the music could be plagiarized as well.
By musical idea, melody or motif is what is meant. Talking of sampling, it is when one takes
and uses a portion of a song in another song or music.31 Most issues of musical plagiarism have
been on trial in different courts around the world, even though at its best, an out of court
settlement is always the end result, with some monetary settlements.
27
Turnitin, Is recycling your own work Plagiarism?, available at https://www.turnitin.com/blog/is-recycling-
your-own-work-plagiarism.
28
Judy Nelson, The Most Scandalous Cases of Plagiarism in Art, 360, available at
https://www.the360mag.com/the-most-scandalous-cases-of-plagiarism-in-art/.
29
CIIT College of Arts and Technology, Tips to avoid art plagiarism, towards becoming a better Artist, (October
22, 2018), available at www.ciit.edu.ph.
30
Hurt Dahl, Music Plagiarism, available at https://lawyerdrummer.com/2017/03/music-plagiarism-2/.
31
Id.
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Legendary Cameroonian musician Manu Dibango sued Michael Jackson for having some
words from his classic soul makossa namely, “mama-say mama-say ma-ma-coo-co-sa”. At the
end, Michael Jackson agreed to have borrowed some lines from Manu Dibango’s song and
agreed to an out of court settlement, the amount for which was undiscovered.32
The heir of Solomon Linda, the author of the popular South African song, “Mbube which
became the popular music”, succeeded to a legal settlement with ambience music company
which had the worldwide rights to the song “the lion sleeps tonight” and the licensed the song
to Disney. The outcome of the settlement was in three fields33:
• Solomon Linda’s heirs settled to benefit past payment for the use of “the lion sleeps
tonight” and also future royalties from its worldwide use.
• They received acknowledgement of authorship that is the fact that, “the lion sleeps
tonight” is derived from “Mbube”.
• Solomon Linda was acknowledged as co-author of “the lion sleeps tonight” and will be
so recognized even in future
In 2005, Belgian song writer Salvatore Acquaviva won a judgment against Madonna, claiming
that her 1998 hit song titled “frozen” had been stolen from her 1980s song, “ma vie fout le
camp”. Even though the judge refused to award damages, he ordered for the withdrawal of all
remaining disc on sale and also banned all Belgian TV and radio stations from playing the song
on air.34
ii. Plagiarism Of Paintings
As earlier mentioned, sketches, paintings and even sculptures are subject to plagiarism35. Some
writers have referred to this type of plagiarism as “visual plagiarism”36. Pablo Picasso is notable
for his statement “good artists copy; quiet artists steal”37. An example is the 2015 plagiarism
32
Sean Michaels, Rihanna and Jackson sued by African singer, The Guardian, (available at
https://www.theguardian.com/music/2009/feb/04/rihanna-michael-jackson-manu-dibango, (February 4, 2009).
33
Id.
34
Id.
35
Supra note 29.
36
Mississippi State University, What is Visual Plagiarism? available at
https://guides.library.msstate.edu/visualplagiarism#:~:text=Visual%20Plagiarism%20can%20also%20be,claimi
ng%20it%20as%20one%27s%20own.
37
Id.
Page | 76
case where the Belgian courts found Luc Tuyman’s guilty of plagiarism of Kartryn Van Giel’s
photo. Luc Tuyman’s painted a local politician and it was held to be in breach of the
photographer, Kartryn Van Giel’s copyright. In this case, Tuyman claimed that his work was
not subject to copyright law since it was a parody but the courts of Antwerp rejected his claim.
Tuyman paid huge amount in dollars as damages.
An art is said to have been plagiarized when it has been copied or modified and passed off
without permission or proper credit. The slightest modification such as adding colours and clip
art or text does not make it less plagiarism. Tuyman’s defence of the format and colour contrast
being different did not suffice to proper defence.38
CONTEXTUALIZING PLAGIARISM
Education on intellectual property has been relegated in the world’s system of education. To
this end copyright infringement on the intellectual efforts of both students and teachers is a
common practice. Even though plagiarism stands out as one of such acts which may constitute
copyright infringement, many don’t see it so. The practice of plagiarism in any manner
conceivable still remains both an ethical and legal issue. This goes with the view of Miguel
Roig that plagiarism can be demonstrated in diverse ways which transcends “student papers on
published articles or books’’.
A. The Ethical vs. Legal Dichotomy of Plagiarism
The act of plagiarism can be seen as two sides of the same coin. While it is an ethical
misconduct, it can also largely be a legal act to the extent of copyright infringement.
As an ethical concept, plagiarism is grounded on community standards39. Because no universal

unified standard exist for the regulation plagiarism, different communities or institutions have
set their own standards on which their members must adhere to. Academic Institutions for
38
Leoin Samuels, Painter found guilty of Plagiarism for painting a photo, claims format and contrast are
different, available at https://www.diyphotography.net.
39
Amherst College, Intellectual Responsibility and Plagiarism, available at
https://www.amherst.edu/offices/student-affairs/community-standards/intellectual-responsibility-and-plagiarism.
Page | 77
example, considered as plagiarism as academic dishonesty. Academic institutions attach very

serious consequences plagiarism. As punishment for plagiarism, academic plagiarists could
face consequences such as expulsion from school, withdrawal of degree, community service
detention and many others.
Plagiarism as an ethical issue is also commonplace in professional institutions such as

journalism communities and writers’ associations. In the sphere of journalism for example,
plagiarism can occur in three different ways which include; plagiarism of information, writing
and ideas. A journalist may use information collected by another reporter without
acknowledging such reporter in his report. A journalist may also copy and paste part of another
journalist’s article without referring to the source of such writing and lastly a journalist may
use a news idea developed by another journalist without crediting them40.While academics will
refer to plagiarism as academic dishonesty, journalist and writers’ associations regard it as
breach of professional ethics which may result in withdrawal of practice license, loss of job
etc. The above paragraph reiterates plagiarism as an ethical concept. What then of the legal
aspects of plagiarism? Can plagiarism actually lead to legal consequences? Well, the answer
will largely depend on the nature of the plagiarism. The most perceivable way in which
plagiarism could have a legal bearing is through copyright infringement 41 , even though
copyright infringement does not always constitute plagiarism. An example is where an author
quotes a copyrighted work extensively which exceeds the limit and purpose of fair use or
beyond the prescribed limit of words to be borrowed from an author’s work. Such act will be
an infringement of the author’s copyright even though it may not amount to plagiarism since
the user has, by way of quotations, acknowledge the source of the idea42.
Also, one can plagiarize from a source that has entered into a public domain43. This will be
plagiarism if the user fails to acknowledge the source but will not be copyright infringement
40
Paraphrasing Service, Why it’s important for journalists to avoid Plagiarism?, The Medium, (October 31,
2016), available at https://medium.com/@ParaphServs/why-its-important-for-journalist-to-avoid-plagiarism-
4d7a7b36930c#:~:text=It%20is%20Important%20to%20Avoid%20Plagiarism%20in%20Journalism&text=An
%20organization%20earns%20and%20maintains,adherence%20to%20ethical%20journalistic%20standards.&te
xt=A%20journalist%20that%20commits%20plagiarism,the%20organization%20they%20work%20for.
41
Plagarism Checker, Is plagiarism legal?, https://www.plagiarismchecker.net/dev/is-plagiarism-illegal/,
October 27, 2017.
42
Supra note 14.
43
Stanford Libraries, Public Domain Public Spots, available at https://fairuse.stanford.edu/overview/public-
domain/trouble-spots/.
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because works in the public domain are not protected by copyright. A writer may also copy an
idea which is not his without proper acknowledgement – He will, by such act, be said to have
plagiarized but this act would not lead to copyright infringement, because ideas in themselves
under copyright law are not protected44.
B. The Legal Aspect of Plagiarism
Although plagiarism and copyright infringement cannot be used as synonyms, there are
instances where plagiarism infringes copyright which shifts plagiarism from an ethical subject
to a legal one. Some forms of plagiarism unabatedly interfere with the rights of the author
which are both economic and moral, howbeit, that the link is a technical one.
As opined by Bainbridge, “fundamentally, copyright law exist to prevent others from unfair
advantage of a person’s creative efforts. The courts have displayed very little sympathy for
plagiarist and frequently and frequently have demonstrated that copyright law ought to be
interpreted in such a way as to protect the interest of the copyright owner...” 45 The above
quotation fits into the rough practical test of Preston J., in University of London Press Ltd. v.
University Tutorial Press Ltd46, where he said “... what is worth copying is worth protecting.”47
Talking of protection, one of the principal subjects of protection is “Authorship”. Without
authorship, copyright becomes a myth. Copyright only exists because there is an author who
created the work. Certain forms of plagiarism therefore become imperatively disadvantageous
to the concept of authorship. To be denied authorship is to hamper creativity and progress.
Certain courts around the world have embraced the fact that plagiarism could constitute a valid
cause of action. Under American jurisdiction, for example, a plagiarist could be sued by
copyright owners in their federal courts for copyright infringements. Under American law, all
works created post 1st March 1989 are automatically copyrighted and therefore protected48. The
U.S law prohibits attempts made by a plagiarist to avoid copyright infringement under the
pretext of non-substantial copying49. This view is supported by the American case of Nicholas
44
Supra note 41.
45
Bainbridge, Divid I, Intellectual Property, Chap 3, Pp 35, (5th Ed, 2007).
46
[1916] 2 Ch 601.
47
Id.
48
Check for Plagiarism.net, Academic Paradigm, the law of plagiarism, www.checkforplagiarism.net, (Accessed
Date 14/11/2018).
49
Ibid.
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v. Universal Pictures Corp50. It was established by this case that, “it is of course essential to
any protection of literary property... that the right cannot be limited literary to the text, else a
plagiarist would escape by material variations”51 It was also held in the case of Sheldon v.
Metro-Goldwyn Pictures Corp. that “... no plagiarist can excuse the wrong by showing how
much of his work he did not pirate”.52
In academia, students’ research and dissertations are mostly the kind of works plagiarized,
perhaps because plagiarists find such works not to be protected by copyright law. This view
has not been embraced with amity by the Indian courts. It was held in the Indian case of Fateh
Singh Mehta v. Singhal that copyright law also protects student research thesis and dissertations
since they are classified under literary works53.
iii. How Plagiarism Infringes Economic Rights
As observed by Cornish and Llewellyn, “commercial piracy of books, recordings, films,

computer games and other programs directly undermine the economic interest of the
producers”54. Plagiarism can go a long way to cause loss of profit by the real owner of a work
because due to the plagiarism, the owner became unable to sell, distribute or use his work.55
Widespread plagiarism on the internet is sponsored by the misconception about public domain
and fair use. Most of the contents of certain websites are misconstrued by the users to belong
to the public domain or within the confines of fair use which is not always the case56. This
misconception does not just give them the boldness to copy patches of the work, but it permits
extreme plagiarists to copy the whole work and publish as their original creation. In doing so,
they go as far as publishing and reproducing same without the permission of the original author,
which infringes the economic right of the author.
50
45 F.2d 119 (2d Cir. 1930).
51
Id.
52
Id.
53
Mohd O. F, Babar R, Pragati, Issues of copyright infringement with electronic thesis and dissertations (ETDs):
A critical analysis, Vol. 7, IJRLS, (2017).
54
Cornish and Llewellyn, Intellectual Property: Patent, Copyright, Trademark and Allied Rights, (5th Ed. 2003)
at 508.
55
Laws, What are the legal consequences of plagiarism? available at https://copyright.laws.com/copyright-
laws/legal-consequences-of-plagiarism.
56
Shobhna, plagiarism: an intellectual theft Retrieved from
http://www.legalservicesindia.com/article/284/Plagiarism.html (accessed 9-9-2018).
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The economic right is said to have been breached because economic rights give the author the
liberty to authorize his work to be used by any other users, and the reproduction and passing
of such plagiarized work without the author’s permission cannot be anything less than a
copyright infringement. The plagiarist also stands to benefit financially from his theft. This
again interferes with the economic rights of the original author who has to benefit financially
from his work. Specifically, it will be a piracy which is a form of infringement. Piracy is the
unauthorized copying of copyright materials for commercial purposes.
The word piracy has many constituents. First of all, it entails illegal appropriation of someone’s
work without credit and this properly fits the definition of plagiarism. Piracy also implies the
unauthorized reproduction of the work and subsequent sale and distribution of the illegally
reproduced work.
The above scenario indicates how plagiarism can be seen as copyright infringement. The public
domain misconception can be clarified if the user of a particular website before using the
contents of such site, checks whether or not it has been specifically stated that such content
belongs to the public domain. Except otherwise stated, they remain copyrighted materials and
reproduction of such works will be considered illegal and constitute an infringement.
iv. How Plagiarism Infringes Moral Rights
While some authors have succeeded in putting plagiarism and copyright infringements at
extremes, it is the opinion of the researcher that certain forms of plagiarism infringe the moral
rights of an author. Moral right is one of the two rights which emerge from copyright. While
economic right labours for an author to benefit financially from the use of his work, moral right
is out to achieve the following:
1. For the author to claim authorship.

2. To protect the authors integrity wherein he has the right to stand against any form of
distortion, mutilation or other modifications of/or other derogatory actions to his work
which could undermine the author’s honour or reputation.
Under copyright law the author is an individual who creates a literary or artistic work. He is
equally an individual who designs a work and indicates the realization of such work by an
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automatic process57. Looking at who an author is, by definition, it is clear that plagiarism has
a negative bearing on the moral rights of an author. When one plagiarizes it is the same thing
as denying that a work was created by its author. Moral rights are conferred upon copyright
holders by the very reason of their authorship. Not giving credit to the author after using his
work would mean ripping the author off his owner as an intellectual creator which is the same
as infringing his moral rights.
An example is the case where a historic copy all or a substantial part of another writer’s book
and passes it off as his original creation. The implication of this case is straight forward; the
historian has assumed the authorship of the original author and by so doing, the original author
loses his rights and benefits of his creativity.
The principle of inalienability of moral rights also becomes interfered with. Inalienability by
word web dictionary supposes incapacity of being repudiated or transferred to another. 58
Appropriating someone’s words, text, design, elements, images, data, paintings, songs, music,
films etc. and passing it as an original creation supposes some sort of repudiation of the right
of authorship or better still, a transfer of such rights to author. This is in contradiction to the
concept of moral rights of an author and therefore an infringement of copyright.
CONCLUSION
Plagiarism is a concept which is not just an offence but a serious one and the manner in which
it is handled is largely influenced by the definition that it has been given. The concept of
plagiarism has been narrowly defined to mean just the appropriation of words or ideas, leaving
out fundamental aspects like misappropriation of works of arts and music. This has a negative
impact on the fight against plagiarism as offenders are often set free as plagiarism has been
concluded to be an ethical and not a legal issue. However, as has been postulated by this paper,
it is not an overstatement to look at plagiarism as a legal concept to the extent of copyright
infringement. This is so because although plagiarism is not synonymous to copyright
infringement, there are certain aspects of plagiarism that may constitute infringement of
copyright whereby both the moral and economic rights of the author has been interfered with.
57
Law No. 2000/011 of December 19, 2000 on Copyright and Neighbouring Rights, Cameroon, Art 7(1).
Available at, CM001: Copyright, Law, 19/12/2000, No. 2000/011 (hallelaw.com).
58
Word Web Online, Inalienable, Available at, https://www.wordwebonline.com/en/INALIENABLE.
Page | 82
Taking some one’s word for example and passing it off as though it belongs to the one passing
it is contemporaneous to denying the author his authorship and moral rights are all about
authorship and integrity. Economic rights on its part could also be interfered with by certain
acts that follow plagiarism. A person for example who plagiarizes a book or music and
commercializes it will get financial returns from it. His getting of returns technically means a
reduction of the normal returns which the original author ought to have had, had his work not
been plagiarized and sold. This paper therefore recommends a redefinition of the term
plagiarism taking into consideration the possibility of artistic and musical works to be
plagiarized. Equally, a universal standard regulating plagiarism should be adopted. This will
not only strengthen the process of regulating plagiarism, but it will serve as an educative tool
to inform the academic institutions, professional associations and the world at large on the
concept of plagiarism Lastly, this paper advocates for the inclusion of plagiarism into copyright
treaties and legislations and classified as one of the means through which copyright could be
infringed.
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A COMPREHENSIVE ANALYSIS OF THE CHALLENGES TO COPYRIGHT
PROTECTION VIS-À-VIS ARTIFICIAL INTELLIGENCE: EXPLORING PRACTICAL
LEGAL SOLUTIONS
Yatin Gaur*
ABSTRACT
The extraordinary advances in the field of Artificial Intelligence and related technologies is
opening up new horizons to express and share creativity by providing innovative tools to
produce creative works of art. However, the throes of technological advancement are
underpinned by numerous challenges, raising novel questions about how to and whom to grant
the copyright ownership and protection, and attach the liability to in the cases of AI-related
work which is currently operating in a legal vacuum. This paper, therefore, seeks to dive deep
into the issues associated with the authorship and accountability in the case of AI-generated
work, taking into account the philosophy behind the working of the AI system and the rationale
behind copyright protection. This paper also discusses how the Indian Copyright Act is
insufficient to grant protection to the AI-generated work. Further, it proposes and examines
various legal models that can be adopted to address these issues. The author reflects upon
these models taking into account the interests and rights of the various stakeholders involved
in the creation of AI-generated work. The author especially argues in favour of the novel
concept such as “Work for Hire Doctrine & Compulsory Registration” model; while also
emphasizing on the objective of the paper that is to promote and facilitate an open and
insightful debate on the various issues associated with AI-generated work which can serve as
the foundation to frame better policy in future.
Key Words: Artificial Intelligence, Copyright law, Authorship, Originality, Copyright

Registration.
The Author is a III Year Law Student from Hidayatullah National Law University, Chhattisgarh.
Page | 84
INTRODUCTION
The unprecedented development in Artificial Intelligence (“AI”) systems is forcing us as a

society to confront unique legal, and ethical challenges and to redefine our understanding about
the basic concepts of authorship, ownership and accountability. AI-enabled systems have
evolved from merely performing simple calculations to producing complex works of art, poetry
and other creative works. However, the works created using AI are not evidently protected
under any legal framework, posing an imminent threat to creativity and innovation while also
leading to potential copyright infringement. This is especially problematic because the prime
objective of the copyright laws is itself aimed at the promotion of useful art and science by
granting exclusive rights to the authors and inventors to benefit from their works of authorship.1
Traditionally, the ownership of the copyright in computer-generated works never became such
a complex issue because earlier the software was merely a tool that assisted in the artistic
process.2 However, the ability of the AI to make decisions on its own, so that the output is
parallel to how an intelligent person responds to similar inputs with or without any active
human intervention is what makes AI so special. In the case of AI, it is also extremely difficult
to ascertain or measure the originality of work as in each work, the degree and the complexity
of the input needed to be provided to AI Algorithms varies significantly.
These subsequent works are thus a matter of great controversy touching upon the legal grey
area of copyrights. Academicians and jurists around the globe are therefore, deliberating to find
out a practical solution to the dilemma surrounding copyright accountability and authorship
involving AI generated works.
However, in an interesting development lately, the Indian Copyright Office has registered an
Artificial Intelligence (AI) app “Raghav” and its owner as the co-authors of an AI generated
painting titled ‘Suryast’. 3 But it is to be noted that an earlier application in which the AI was
mentioned as the sole author was rejected and the copyright was granted only after the addition
1
Copyright, World Intellectual Property Organisation, available at https://www.wipo.int/copyright/en/.
2
Andres Guadamuz, Artificial intelligence and copyright World Intellectual Property Organisation, World
Intellectual Property Organisation, available at
https://www.wipo.int/wipo_magazine/en/2017/05/article_0003.html.
3
Copyright Office, Government of India, available at https://copyright.gov.in/Documents/ERegister/E-
Register_November_2020.pdf.
Page | 85
of both the names. Therefore, this approach adopted by the Copyright office fails to clear the
air around those AI-created work that requires little to no human intervention. Moreover, the
aforesaid registration is likely to be challenged due to the ambiguity in the legislation and
jurisprudence regarding whether and how the exclusive protection should be accorded to such
works under the copyright regime.
This article therefore seeks to address the questions concerning copyrightability, ownership
and accountability of the AI generated artworks. Part I of the article deals with the background,
working and the classifications of the AI systems and how it acts as a substitute for human
authors. Part II of the article then touches upon how the current Indian Copyright framework
is inadequate in handling AI generated works and the issues related with it. Part III of the article
then performs a stakeholder analysis analyzing the suitability of the players to enjoy the
benefits of copyright protection and to whom the accountability should be attached in case of
copyright infringement resulting from the AI system. Part IV of the article finally seeks to
explore and analyze the practicality of various legal solutions that can be adopted to deal with
this legal conundrum. The author while reflecting upon various alternatives especially argues
in the favour of concepts of “Work Made for Hire Doctrine & Compulsory Registration Model”
which is later followed by a conclusion.
ARTIFICIAL INTELLIGENCE: BACKGROUND AND WORKING
When modern computers develop the capability to efficiently perform tasks or take decisions
similar to intelligent beings, it is called “Artificial Intelligence”.4 Such computer devices are
also called as “creative machines”. 5 Although the term Artificial Intelligence has been defined
by several authors, inventors and futurists,6 the crux of all these definitions can be summarised
as a machine which makes use of special algorithms that allows it to learn from data received
as input, and to evolve and make future decisions that may be either directed or independent.
The algorithms are designed in such a way that it resembles the intellectual processes
4
Prof. A. Lakshminath & Dr. Mukund Sarda, Digital Revolution and Artificial Intelligence- Challenges to Legal
Education and Legal Research, (2) CNLU Law Journal, (2011-2012).
5
Stephen Thaler, Creativity Machine® Paradigm, Encyclopedia of Creativity, Invention, Innovation and
Entrepreneurship, 451 (Elias G. Carayannis ed., 2013).
6
Matthew U. Scherer, Regulating Artificial Intelligent Systems: Risks, Challenges, Competencies, and Strategies,
29 Harvard Journal of Law & Technology, 353, 360 (2016), available at
http://jolt.law.harvard.edu/articles/pdf/v29/29HarvJLTech353.pdf.
Page | 86
characteristic of humans, such as the ability to discover meaning, rationalise, generalize, or

learn from past experiences. Essentially speaking, the eight critical features of AI systems are
as follows:
1. Rational7
2. Independent and autonomous8
3. Creative9
4. Accurate and Efficient10
5. Unpredictable11
6. Choose freely from available alternative.12
7. Capable of communication and Data collection13
8. Evolving14
Some of the earliest efforts that have been made to identify whether the outcome that has been
produced by the AI is a result of its own intelligence or the inputs provided by the creator,
includes the famous “Turing test” proposed by Sir Alan Turing. 15 According to Turing,
artificial intelligence is considered to have shown wisdom if the responses it has given are
indistinguishable from the real human responses. However, this test was applicable to only
specific quizzing purposes and speech machines. But now the World Intellectual Property
7
David L. Poole & Alan K. Mackworth, Artificial Intelligence: Foundation of Computational Agents, 71, 283-
334, 597-611 (2010).
8
Rebecca Crootof, The Killer Robots Are Here: Legal and Policy Implications, 36(1) Cardozo Law Review 1,
1854-1863.
9
Hutter Marcus Hutter, Universal Artificial Intelligence: Sequential Decisions Based On Algorithmic Probability,
125- 26, (Springer, 2005); Matthew U. Scherer, Regulating Artificial Intelligent Systems: Risks, Challenges,
Competencies, and Strategies, 29 Harvard Journal of Law & Technology at 364-65.
10
GEORGE F. LUGER, ARTIFICIAL INTELLIGENCE: STRUCTURES AND STRATEGIES FOR
COMPLEX PROBLEM SOLVING 26 (6th ed. 2016); Woodrow Hartzog et al., Inefficiently Automated Law
Enforcement, 2015 MICH. ST. L. REV. 1763, 1765-67, 1793-95.
11
Jonathon Keats, John Koza Has Built an Invention Machine, POPULAR SCI. available at
http://www.popsci.com/scitech/article/2006-04/john-koza-has-built-invention-machine.
12
Oliver Deussen et al., Feedback-Guide Stroke Placement for a Painting Machine, PROC. EIGHTH ANN.
SYMP. ON COMPUTATIONAL AESTHETICS IN GRAPHICS, VISUALIZATION & IMAGING 25, 25, 27
(2012).
13
Id.
14
Jordan & Mitchell, Machine Learning: Trends, Perspectives, and Prospects, 255, 257.
15
Alan Turing, Computing Machinery and Intelligence, 59 MIND 236, 433– 60 (1950).
Page | 87
Organisation (WIPO) has classified AI into three types, i.e., expert systems, natural language
systems, and perception systems.16
INDIAN COPYRIGHT FRAMEWORK IS UNEQUIPPED TO HANDLE AI-GENERATED WORK
In Indian Jurisprudence, controversy hovers around the works created by the AI as the same
has not been protected under the copyright laws or by any other existing laws, raising doubts
regarding whether the work is itself eligible to be copyrightable or not.
A. Ambiguity regarding the ‘originality’ standard of work produced by AI
Section 13 of the Copyright Act explicitly states that any dramatic, artistic, literary and musical
work cannot be granted copyright unless it passes the test of ‘originality’.17 Further, the term
original work has not been defined in the Act, but the threshold originality standard required
can be ascertained by looking at the judicial practice.
Indian courts implicitly followed the ‘sweat of the brow’ doctrine for a considerably long time
i.e., whether the work produced by the author is a result of the skill and labour.18 However, the
Supreme Court of India later discarded the ‘Sweat of the Brow’ doctrine in Eastern Book
Company v. D.B. Modak case19 and shifted to a ‘Modicum of creativity’ approach. It was held
that copyright can be granted to a work only if the same has been produced by the exercise of
skill and judgment having some distinguishable flavour and feature of its own and not merely
on account of it being a product of labour and capital.
Therefore, it is essential that the AI generated work must qualify the above standard of
originality for it to be granted protection under the copyright law. However, it may be argued
that since the work produced by AI is a result of mere organisation and collection of specific
data being fed as input therefore is an investment of only effort, time, labour and money and
not skill and judgement. Hence it does not deserve copyright protection but may only qualify
16
A. Johnson-Laird, Neural Networks: The Next Intellectual Property Nightmare? 7 THE COMPUTER
LAWYER 14 (March 1990).
17
The Copyright Act, 1957, S.13, No. 14, Acts of Parliament, 2017, (India).
18
Saksena H, “Doctrine of Sweat of the Brow”, SSRNR Electronic Journal (2009), available at
https://ssrn.com/abstract=1398303.
19
Eastern Book Company & Ors vs D.B. Modak & Anr; 101 (2002) DLT 205.
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as a ‘compilation’. However, alternatively it can be argued that the AI does not copy the
previous works but rather builds upon these existing works and produces new and original
work by identifying, processing, remembering, and implementing similarities and
interconnections exhibiting human-like creativity, autonomy and rationality.
Therefore, the existing law provides no clarity regarding the threshold originality standard
required to be satisfied by an AI generated work for it to merit protection under the Copyright
Act.
B. Authorial accreditation in the case of AI-related work
On a preliminary examination, one can argue that the Copyright Act states that in relation to
any computer-generated literary, dramatic, artistic, or musical work, the authorship is conferred
on the person who causes the work to be created.”20 However, since the AI has not yet been
accorded any legal status in India, the provision in its current shape cannot be applied in the
case of AI-generated work as the section falls short of addressing any scenario in which there
is no ‘person’ involved in the creation of the work.
It is also pertinent to note here that till now the Indian courts have never dealt with any case
pertaining to granting authorship to the AI-generated work. However, the intention of the
Hon’ble courts can be ascertained by referring to some other landmark judgements in which
the court elaborated the meaning of the term “author”. The court while deciding the case of
Rupendra Kashyap vs. Jiwan Publishing House Pvt. Ltd., 21 held that the C.B.S.E (Central
Board of Secondary Education) cannot claim the copyright in the examination papers as it is
not a natural person unless it establishes that it has specifically engaged persons for purposes
of compiling questions for the preparation of question paper. In another case of Tech Plus
Media Private Ltd. v. Jyoti Janda,22 a division bench of the High Court of Delhi stipulated that
a juristic person cannot be credited as the author of a work in which copyright may exist.
20
The Copyright Act, 1957, S. 2(d)(vi), No. 14, Acts of Parliament, 2017, (India).
21
Rupendra Kashyap Vs. Jiwan Publishing House Pvt. Ltd., 1996 (38) DRJ 81.
22
Tech Plus Media Private Ltd. v. Jyoti Janda, (2014) 60 PTC, 121.
Page | 89
Similarly, the Copyright Office's Practice and Procedure Manual (2018),23 further reiterates
that only a natural person is capable of being the author of the work.
It has also been pronounced by the courts in a catena of other judgements that for the protection
of a compilation work under copyright law it is essential that the requirement of “authorship”
in arrangement, selection and coordination of the material must be necessarily satisfied. The
use of the term “Author” here signifies that there must be a human author involved and must
have exercised a minimum modicum of creativity for the work to be copyrightable.
C. Copyright infringement in the case of AI-related work
The behaviour of robotic and AI systems is emerging which means their actions might be
unconstrained or unpredictable escaping human planning and expectations24. This may in turn
yield unpredictable results leading to copyright infringement as defined under Section 51 of
the Copyright Act.25 However, upon careful perusal of Section 51, it can be observed that the
law recognises that only a "person" can be held liable for the infringement of copyright. The
AI's legal status remains unclassified as a legal entity, so any infringement caused by AI if left
unchecked can become a serious issue. Therefore, an important question that needs to be
addressed here is the issue of accountability for such infringement if the authorship and
ownership rights are granted to the AI. It should also be noted that even if the law is amended
to impose liability on AI it will only further complicate the matter.
Therefore, by taking into account the lack of clarity on the definition of the author, issues
pertaining to accountability in case of copyright infringement, or the copyright accreditation
involving varying levels of human inputs ranging from something substantial to no intervention
at all it is argued that Indian Copyright Law in its current shape is not equipped to handle work
created by AI.
AUTHORIAL ACCREDITATION IN AI-GENERATED WORKS: A STAKEHOLDER ANALYSIS
23
Practice and Procedure Manual 2018, Copyright Office, Government of India, available at
http://www.copyright.gov.in/Documents/Manuals/Artistic_Manual.pdf.
24
Jack M. Balkin, The Path of Robotics Law, 6 CALIF. L. REV. CIR. 45, 45-46 (2015).
25
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Another major dilemma associated with the AI created work is to whom the authorial credits
should be granted under the Copyright Act since if the protection has to be granted, it is
essential to determine the contribution of each stakeholder and their subsequent accountability.
But before proceeding with the analysis, it is noteworthy to mention that each AI work varies
significantly and most of the time the AI-generated work may be the result of many hands and
employ generative technologies that involves innovation at multiple stages.26 The contours of
each have to be determined and thus, various options should be placed on the table.
A. No one should be granted the authorial accreditation in AI-generated work
The first approach which must be discounted is that since AI-generated work is not created by
a human author as per the definition of copyright laws, thus should not be granted protection.
The work produced can simply be released into the public domain and can be used and reused
freely. But this approach wrongfully disincentives the companies’ and corporations that have
invested millions of dollars in the development of such systems and demotivates the makers of
artificial intelligence machines to continue developing their capabilities. 27 This approach if
thus adopted can potentially hinder creativity by discouraging developers from investing in
artificial intelligence research.28
B. Artificial Intelligence can be granted the authorial accreditation in AI-generated

work
The second avenue many scholars favour is that the authorship and ownership rights should be
awarded to the AI itself by recognising it as an autonomous legal entity under the category of
non-natural, legal or juristic persons as in the case of companies, organisations or the
government. 29 However, it is submitted that it is an untenable proposition and will only
complicate the matter further which is discussed as follows:
26
Shlomit Yanisky-Ravid & Samuel Moorhead, Generating Rembrandt: Artificial Intelligence, Accountability
and Copyright - The Human-Like Workers Are Already Here - A New Model, SSRN Electronic Journal, (2017),
available at https://digitalcommons.law.msu.edu/cgi/viewcontent.cgi?article=1199&context=lr.
27
Vijay K. Tyagi & Yashdeep Chahal, Infringement of Copyright in Computer Programs in India-Understanding
the State of Virtual Non-Liquet & Challenges vis-a-vis Artificial Intelligence, 2 (Winter Issue) ILI Law Review,
(2019), available at https://www.ili.ac.in/pdf/vkt.pdf.
28
Supra note 15.
29
Amshula Chauhan & Suvarna Mandal, AI And Copyright Authorship: Still Mind Over Matter? Lexology (2020),
available at https://www.lexology.com/library/detail.aspx?g=404f4311-bcc4-4049-b62e-d521ccca90e1.
Page | 91
i) Legal Personhood to machines: If we choose to award the authorship rights to the AI under
the Copyright Act, it will also become essential to accord legal personhood to AI. However,
there are various issues in this approach, considering that copyright ownership is considered to
be ‘only a piece in the constellation of legal standing’30 of AI. This implies that granting legal
personality to the AI will have a much wider impact in advancing the argument of affording
legal personhood to machines which in itself is an idea that is swarmed with numerous
complications.
ii) Moral Rights: This view has also been criticised on the ground that if the AI is granted the
authorship rights, then it will raise issues related to the enforceability of moral rights as per
Section 57 of the Copyright Act,31 in accordance with Article 6bis32 of the Berne Convention.
This can be further viewed in light of Delhi High Court's judgment33 in which it was stipulated
that the author's moral rights scrutinise the essence of authorship under copyright law in India.34
In this judgment, the court elaborated upon the origin of the author's moral rights stating that
the rights (i.e., the right to maintain integrity or purity in a work, the right of paternity, and the
right of retraction) exist because of a privileged relationship between a creative author and his
work. But it is especially difficult to establish such privileged relationship between the author
and AI-generated work.
iii) Length of Protection: Moreover, the length of protection provided under Section 22 of the
Copyright Act35 has been defined in reference to the lifetime of the author i.e., sixty years
following the death of the author. This criterion remains unresolved in the case of AI-generated
work, because AI is not a human and doesn’t die.
iv) Copyright Transferability: The author of the work is considered as the first owner of the
work according to Section 17 of the Copyright Act.36 However, the ownership rights can be
transferred to the employer or to the person at whose directions the work has been produced
by the way of an agreement. Therefore, vesting authorial accreditation in AI will generate
30
James Grimmelmann, There's No Such Thing as a Computer-Authored Work - And It's a Good Thing, Too, 39
Columbia Journal of Law & the Arts 403-414, (2016).
31
32
Berne Convention Art. 6 bis.
33
Amar Nath Sehgal vs Union of India (UOI) And Anr. (2005) DLT 717
34
Id.
35
36
Page | 92
issues relating to copyright transferability since an AI cannot authorise or execute its creator or
any other person the ownership of the work.37
v) Ambiguity in determining the Royalty: In accordance with existing Indian copyright laws,
the author of the work has an unwavering right to claim royalty over his/her work. So, if AI is
awarded the authorial credit in a work, then, it will raise pertinent doubts regarding the
determination and disbursement of the royalty.38
vi) Accountability Issues: If AI is granted the authorship rights, then another serious concern is
regarding the lack of a proper legal framework to regulate its work. Thus, if any work created
by AI is obscene, defamatory or against the public morale,39 then apart from taking down the
content and shutting down the AI, no other action can be taken against the same.
The difficulty further arises from the fact that Indian courts time and again have always
emphasised on the requirement of granting authorship to humans. Further, this is not only
limited to India, as most of the other countries also follow the same approach. An important
case in this regard is that of Naruto v. Slater,40 popularly called as the ‘monkey selfie case.’ In
the instant case, a nature photographer had left his camera unattended, and an endangered
Celebes Crested Macaque, tripped the shutter and ended up clicking more than a hundred
pictures of itself.41 Soon, one of those photos became extremely popular and was published on
various sites including the British press etc. Thereafter the photographer filed the lawsuit to
claim the copyright over the pictures, while PETA (The People for the Ethical Treatment of
Animals), argued for granting the copyright over the pictures to the Macaque. However, the
assertion of the copyright claim was eventually dismissed by the Ninth Circuit court of appeals
in 2018. The court refused to vest the copyright calling it as a “farcical interpretation” of the
term author as provided in Title 17 of the United States Code.42
37
Lucy Rana & Meril Mathew Joy, Artificial Intelligence and Copyright - The Authorship, Lexology (2019),
available at https://www.lexology.com/library/detail.aspx?g=66abb214-381e-4799-8f83-a2f668e2c8d5.
38
Id.
39
Id.
40
Naruto v. Slater, No. 16-15469 (9th Cir. 2018).
41
Camila Domonoske, Monkey Can’t Own Copyright to His Selfie, Federal Judge Says, NPR (January 7, 2016),
available at http://www.npr.org/sections/thetwoway/2016/01/07/462245189/federal-judge-says-monkey-cant-
own-copyright-to-hisselfie.
42
17 US Code S.201.
Page | 93
The first and the only country so far that has been successful in granting legal status to AI is
Saudi Arabia when they granted citizenship to a robot, called Sophia.43 However, despite these
developments, it is still not practical to grant the authorship or ownership rights to the AI itself.
C. The programmer of Artificial Intelligence can be granted the authorial accreditation

in AI-generated work
Before proceeding further with the discussion, it is essential to point out the whole discourse
that follows is only limited at understanding and analysing whether the programmer of the AI
should be entitled to get ownership in the subsequent works generated by the AI or not. The
author nowhere seeks to challenge the programmer’s entitlement in the copyright ownership of
the software they develop, or the patent rights on the AI itself.
It has been argued by many scholars that any kind of artificial intelligence device is a result of
the intellectual efforts of the programmer, without whose creativity the work would have never
come into existence.44Therefore, it's only logical to argue that the authorial credits should be
awarded to the programmer of the generative software. The same also aligns well with the
natural rights theory pursuant to which the developers are entitled to be credited for the ‘fruits
of their labour’.45
The nuances of the above argument can be further substantiated by citing the most popular
cases in this respect i.e., Nova Production Ltd v. Mazooma Game Ltd.46 in which the UK High
Court dealt with the issue of according authorship in the case of electronic pool games. In the
instant case, frames that were displayed on the screen while playing the game were recognised
under computer-generated artistic work. The court stipulated that the authorship rights should
be granted to the programmer of the work acknowledging that the display of the various
elements of the game is merely the result of the copies of the memory stored on the computer
program. The rationale behind the same has also been emphasised in the cases of Stern Elec.
43
Tracy Alloway, Saudi Arabia Gives Citizenship to a Robot, Bloomberg ( October 27, 2017).
44
See Robert C. Denicola, Ex Machina: Copyright Protection for Computer-Generated Works, 69 RUTGERS U.
L. REV. 251, 265, 271, 275 (2016)
45
White, Courtney and Matulionyte, Rita, Artificial Intelligence Painting The Bigger Picture For Copyright
Ownership, SSRN Electronic Journal, available at http://dx.doi.org/10.2139/ssrn.3498673.
46
Nova Productions Ltd v Mazooma Games Ltd & Ors (CA) Reference: [2007] EWCA Civ 219.
Page | 94
v. Kaufman47, Atari Inc. v. North American Philips Consumer Elec. Corp.48and the Enterprises
v. Accolade Inc.49 where the court has recognised that all the image sequences generated upon
the interaction with the user are because of the relevant computer programming fed by the
programmer with the application of his intellectual labour i.e., rules and logic.
However, some other commentators contend that the same claim as in the case of video games
50
and GUIs cannot always be advanced in the generated works of AI. This argument is
grounded on the presumption that it is not the memory in the AI rather the intelligence that is
fed in, which is the inciter of the expression. Furthermore, advanced AI technologies are often
configured in a way to show a great level of expertise and skills that may not even be possessed
by their creators. Similarly, many of the decisions involved in the creative process to expression
cannot be certainly projected in various deep learning programs since AI systems work on the
principle of identifying, finding, processing, remembering, using, and implementing
similarities and interconnections which in many cases is even unknown to the programmer
himself. So, the author argues that the programmers will be rewarded multiple times i.e., one
for the creation of artificial intelligence machines and two for every subsequent piece of work
produced by that AI. Thus, it would be unfair to give credit to the programmer for the same,
despite the programmer himself having no skills or knowledge thereof.
Another practical issue worth noting is that apart from the programmer there are multiple other
stakeholders involved in the development of the AI system which includes the trainer or data
providers, feedback providers, software engineer and data scientists etc. It is also emphasised
that one person might have contributed significantly to the code while the other person may
have just made minor amendments to make it a working code so that it can effectively create
the work.51 Thus it is difficult to determine the contribution of each stakeholder to be qualified
for the co-authorship. Further, it is submitted that the legal relationship among coders is also
47
Stern Elec. v. Kaufman, 669 F.2d 852 (2d Cir. 1982).
48
Atari Inc. v. North American Philips Consumer Elec. Corp., 459 U.S. 880 (1982).
49
Enterprises v. Accolade Inc. 977 F.2d 1510, 1520 (9th Circuit 1992).
50
Andres Guadamuz, Artificial intelligence and copyright, WIPO Magazine, available at
https://www.wipo.int/wipo_magazine/en/2017/05/article_0003.html.
51
Id., at 24.
Page | 95
not clearly defined leading to lack of harmony of interest required for joint authorship in the
allocation of copyright to the developer of AI.52
Another valid concern that needs to be addressed is that, if the authorial and ownership rights
are credited to the programmer of the AI, then the liability of any damages caused by the same
has to be imposed on the programmer itself. This can especially become unreasonable in the
cases where the programmer of AI may not have knowledge of subsequent creation of works
through the AI. Further, the autonomous, unpredictable and creative nature of AI systems is
also not sufficient enough to serve as a strong nexus that can establish negligence or guilt on
the part of the programmer, to exercise due care in case of any damage caused by the same.
Therefore, this approach may also not be efficient and will be unjust.
D. The end user of the AI Artificial Intelligence can be granted the authorial
accreditation in AI-generated Work
It can also be argued that the authorial credits should be awarded to the user since it is the user
who is the final and the most proximate contributor in the AI-generated work.
The rationale behind this approach can be illustrated by considering a hypothetical situation,
where an artist for the creation of painting provided specific paintings as samples, selected the
dimensions, contrast, colour and other valuable inputs (e.g. in case of Portrait of Edmond
Belamy).53 So the authorial accreditation, in this case, should be given to this user who fed all
these essential and planned inputs and not to the programmer who merely fashioned the
programme in such a way so as to learn and build upon the inputs and experiences gathered by
the AI software. This essentially rests on the premise of “recognisable blocks of expression”
which implies that the autonomy exercised by the AI is limited to the inputs provided and does
not go beyond.54 So, the user should be given the authorial credits. For instance, in the case of
Andrej Karpathy, where a Stanford PhD student taught a neural network to read and compose
sentences in a certain style to enable it to generate Wikipedia articles and lines that resembled
52
Pamela Samuelson, Allocating Ownership Rights in Computer-Generated Works, 47 University of Pittsburgh
Law Review 1185, 1222 (Summer 1986).
53
Person, Is artificial intelligence set to become art's next medium?: Christie's The first piece of AI-generated art
to come to auction Christie's, (2018), available at https://www.christies.com/features/A-collaboration-between-
two-artists-one-human-one-a-machine-9332-1.aspx.
54
Akshat Agrawal, AI-Generated Work of Art: Who Deserves the Authorial Credit?, IPRMENTLAW (2019),
available at https://iprmentlaw.com/2019/01/05/ai-generated-work-of-art-who-deserves-the-authorial-credit/.
Page | 96
the language of Shakespeare. 55 Similarly, various other text-generating machine learning

programs have also produced impressive results.56
However, a similar analogy cannot be drawn in case of the work produced by those AI
algorithms where the user’s contribution to the creative process may only be limited to the
pressing of the button so that the software can perform its function. For instance, in the case of
Google’s AI program ‘Poem Portraits’, it is sufficient for a user to type one word into the AI
system to get the poem generated.57 An important hypothetical example in this regard may also
be a weaving procedure that produces randomly irregular shapes without any observable
pattern, so that, in such a case, the user of an artificial intelligence engine is not eligible enough
to be awarded authorial credits as the work is the result of randomness rather than the human
intellect.
Therefore, vesting of the authorship rights to the user in the case of AI-generated work may
appear logical and aligns well with the utilitarian and natural rights theory when the user’s
contribution was significant enough.58 But in certain cases, where the contribution is too remote
and the end output was not a result of the intellectual planned efforts of the end-user then the
present model will not be practical.
EXPLORING PRACTICAL LEGAL SOLUTIONS
A. Co-ownership Approach
As per this model, instead of trying to accommodate AI-generated work in the existing
copyright law, it should rather be recognised as a separate class of work. This model proposes
that the authorship can be awarded by identifying the contribution of different stakeholders in
the generated output and proportionately rewarding the multiple players involved in the
process.
55
The Unreasonable Effectiveness of Recurrent Neural Networks, Andrej Karpathy blog,available at
http://karpathy.github.io/2015/05/21/rnn-effectiveness/.
56
Creating A Text Generator Using Recurrent Neural Network, Chun's Machine Learning Page, (2016), available
at https://chunml.github.io/ChunML.github.io/project/Creating-Text-Generator-Using-Recurrent-Neural-
Network/.
57
Es Devlin, Create a personalized poem, with the help of AI Google, Google Blog, (2019), available at
https://www.blog.google/outreach-initiatives/arts-culture/poemportraits/.
58
Page | 97
But it is argued that this approach is especially problematic because of three main reasons-
I. Considering the creative, autonomous, evolving and unpredictable nature of the AI, it is
extremely difficult to ascertain the contribution and to proportionately reward the same.59
II. Further, co-ownership to multiple players will also not solve the problem of accountability.60
III. Thirdly, a large number of candidates may significantly weaken the contribution of each player
leading to more chaos, thereby hampering the development of Artificial Technologies due to
an ambiguous incentive structure.
B. Open-licensing Model
This model suggests that authorship of AI generated work can be granted to the AI itself so
that there cannot be any chance of copyright infringement of the rights of the author as the AI
lacks legal personhood and thus will not be deprived of any rights. It also aligns well with the
understanding that there is no need to provide an incentive to AI. The work generated by AI
can be openly licensed so that every person can be benefited out of it. Further, the programmer
could be provided protection under the copyright laws. Concerning the end-user, it is argued
that the user is free to make modifications to that and produce his own derivative work and can
get copyright in the same after obtaining an open license.61
However, the author argues against this model as it fails on two very essential grounds, neither
can this model provide an incentive structure nor is it sufficient enough to handle the
accountability issue. It fails to provide an incentive by not conferring any monetary benefits to
the makers of artificial intelligence machines which could potentially hamper the development
of AI as already substantiated above.
C. Work Made for Hire Doctrine & Compulsory Registration Model
This model primarily aims at addressing the practical challenges associated with multiple
stakeholders, accountability and authorship rights in the case of AI-generated work. The AI
Work Made For Hire (“WMFH”) doctrine confers copyright ownership to the person or entity
that initiated the work in the first place, granting them benefit in addition to the accountability
59
Shlomit Yanisky-Ravid & Xiaoqiong (Jackie) Liu, When Artificial Intelligence Produces Inventions: The 3A
Era and an Alternative Model for Patent Law, Cardozo Law Review, at 20.
60
Id.
61
Should The Works Created By Artificial Intelligence Machine Be Protected Under The Copyright Law?,
Khurana and Khurana, (February 5, 2020), available at https://www.khuranaandkhurana.com/2020/02/05/should-
the-works-created-by-artificial-intelligence-machine-be-protected-under-the-copyright-law/#_ftn11.
Page | 98
thereof. 62 This model is premised on the exceptional principle of copyright ownership as

prescribed under Section 17(3) the Copyright Act,63 which stipulates that an employer enjoys
copyright ownership over the works created by the employees or the subcontractors in their
capacity of employment.
On the same lines, this model proposes that the person who causes the work to be created can
be understood as an employer while the AI can be assumed as an employee producing new
works of art in the scope of its employment.64 Further, this would also adhere to the definition
under Section 2 of The Indian Copyright Act,65 where the use of the expression “the person
who causes the work to be created” can be safely interpreted to point towards the final user i.e.,
the person by whom the arrangements necessary for the creation of the work were undertaken.
This approach can also be seen in multiple other jurisdictions including the UK, New Zealand
and Ireland. The UK follows the ‘necessary arrangements’ principle as stipulated under Section
9(3) of The Copyright, Designs and Patents Act 1988 (UK).66 It provides that the copyright in
the case of computer-generated work can be awarded to “the person by whom the arrangements
necessary for the creation of the work are undertaken”. WFMH Model is also quite flexible as
it can be easily applied in the case of organisations, firms or individuals.
Novel Element of Compulsory Registration and Scrutinization of Applications by a Separate

agency to be formed under aegis of the copyright office
Further, the proposed model requires that unlike the general principles of copyright law, the
works produced by the AI should not be protected by its mere creation.67 Rather, registration
of the work should be made mandatory in all cases, only after which the user shall be able to
enjoy the copyright in the work. The user can be asked to apply to the copyright office and the
copyright office should scrutinise the application on two grounds of merit:
62
Supra note 30.
63
The Copyright Act, 1957, S.17(3), No. 14, Acts of Parliament, 2017, (India).
64
Supra 26 at 705.
65
66
The Copyright, Designs and Patents Act 1988 (UK), S.9(3).
67
Hand Book of Copyright Law, Government of India Department For Promotion of Industry and Internal Trade
Ministry of Commerce and Industry, available at http://copyright.gov.in/Documents/handbook.html.
Page | 99
I. Copyright Infringement: The application should be preliminarily examined so that it

is not infringing someone else’s work. In case if it is found infringing someone else’s
copyrighted work then the applications must be summarily rejected.
II. Skill and Judgement Test: The second stage of scrutinization must involve a careful
perusal to identify the nature, degree and kind of the inputs provided by the end user in
the creation of the AI-generated work to ascertain whether the inputs provided passes
the “minimum skill and judgement test”.
a) In cases where the contribution of the final user in the creation of the work is
too remote or does not qualify the minimum ‘skill and judgement test’, i.e.,
merely a product of randomness and the creative intelligence of the AI that can't
be anticipated, then the work can be simply released in the public domain with
AI being granted the authorial credits. However no right of ownership must be
vested in the AI for the purposes of the exploitation and the work produced can
be openly licensed.
b) While in those cases where the work generated by the AI is a product of the
‘skill and judgement’ of the final user and the creative intelligence of the
machine, then the copyright should be granted. The authorial credit may be
vested with the AI however the ownership rights must vest with the final user
for the appropriate exploitation of the rights granted under copyright
It is proposed that since AI is a highly technical field, therefore, the legislature can establish a
separate agency or wing under the copyright office for the copyrightability in the case of AI-
generated work. It should be staffed by AI specialists with relevant academic and industry
experience who are well-equipped to determine the merit of each application. Apart from
deciding the merits of each application, the agency shall also be responsible for clarifying and
specifying most aspects of the substantive rules and doctrines applicable in the copyrightability
of AI-generated work.
D. The rationale behind the approach
I. The rationale behind this approach is that the programmer of the AI gets duly accredited
with copyright ownership for the code he created. Although he may not hold the copyright
in the subsequent works, and rightly so as the creativity of an AI system is not essentially
Page | 100
the creativity of the programmers or the causal relationship is insufficient to draw a

rational nexus that can justify the programmer’s ownership in AI-generated work.
II. Further, it also does not incentivise the AI systems and the robots which is logical as AI
systems are internally programmed to produce such works, so there is no specific
advantage of incentivising them to perform these functions.
III. Most importantly, the proposed model eliminates the possibility of those situations where
a minimum exercise of judgment or creativity (depending on jurisdictions and the
originality standard) in the selection of inputs fed, could have disproportionately
incentivised the final user to claim copyright in the work. Therefore, this approach charts
something of a middle course.
IV. Further by not according authorship to the user in case if the AI generated work fails to
pass the minimum skill and judgement it refrains from granting excessively broad
protection to all the AI-generated work. Therefore, ensures the prime objective of
stimulating creativity by not rewarding the user for mere randomness and intelligence of
the AI machine.
V. Further, this model seeks to provide an efficient solution to the complex issues of
infringements, damages, and counterfeiting of third-party rights in case of AI generated
work by establishing a unique mechanism to avoid such instances through mandatory
preliminary examination of applications. It also tries to successfully balance the right and
duties quotient by placing responsibility upon final user of the AI systems who enjoys the
maximum interest in the generated work.
VI. This model especially aligns well with the law and economics theory, promoting
commercial force of the AI-generated work apart from also encouraging the efficient use
of creative, autonomous AI systems.
VII. This model is progressive as it takes a step towards acknowledging the human-like
features of AI systems displaying intelligence, creativity and independence placing them
at par with the employees and self-contractors.
VIII. It only seeks to amend and modify the existing copyright law to make it more
accommodative, therefore maintaining legal and social stability.
E. Countering the Criticism
As per the author, the only valid criticism against the WMFH can be that it confers a
disproportionate advantage to the user of the AI as the WMFH model of a corporation is
Page | 101
inconsequential in the AI context. In AI there are no humans involved while in the case of
corporations, the work is produced by the employees who work within the scope of their
employment. These employees work for the employer producing creative work with valuable
inputs, involvement, contribution and guidelines from the employer. For instance, a production
company for the creation of a play would scout and find talent, provide it with necessary
resources, create marketing strategies, employ several technicians and experts in various
capacities to bring everything together. It is this upfront cost entailed in developing artistic
talent and slowly producing the work that serves as a rational justification as to why such rights
are conferred on the employer. This is what is essentially lacking in the case of AI-generated
work, and the costs accruing to the user is much lower in comparison as the user of AI may
only need to buy the machine and supply it with materials to produce non-stop work, without
needing to be compensated. However, the author also argues that before challenging this model
on this particular ground it is essential to consider that apart from all the other alternatives
proposed this model appears the most practical one and has a very broad application, balancing
the rights of each stakeholder. It is further emphasised that the user under this particular model
is only credited when the work generated by him is the result of creative inputs fed by him
while exercising substantial skill and judgement.
Although the upfront cost is indeed lower in case of AI-generated work, but this should be
viewed in the context of the very purpose of AI itself i.e., to facilitate easy creation of quality
work by assisting and channelising the human inputs. Further, the user may get access to these
AI machines and deep learning programmers only after paying a proportionate amount of
money to the developers of AI. Therefore, taking into consideration all these inputs, a
reimagination or reinterpretation of the philosophy behind the WMFH doctrine in the case of
AI-generated work will be a more feasible alternative than rejecting this model altogether.
CONCLUSION
After having such a comprehensive and detailed discussion over the copyright accreditation in
AI-generated work, and reflecting upon the various models proposed, it can be certainly
concluded that if the legal structure remains stagnant without providing any legal framework
to protect the AI-generated creative works then it may significantly hamper the growth of AI
in future. This may cause a great disservice to the stakeholders involved and the investors
investing billions in the development of AI technologies.
Page | 102
Given that India is still at a relatively nascent stage in the usage and development of Artificial
Intelligence, it is even more imperative to address all these issues in a timely manner. The
emphasis should be on laying down a stable, lucrative, and balanced incentive structure through
copyright law that will promote industrial growth.
It is suggested that the policymakers can take into consideration all these doctrinal approaches,
and frame a policy by reflecting the drawbacks and the benefits of each model.
It is also suggested that more reflection is also required to understand the fundamental
philosophy behind the working of the AI system, which may further go a long way in
substantiating the difference in the level of creativity and ingenuity that can be exhibited by a
human and the AI respectively. The answers of these questions will also inevitably result in
formalizing the originality standard and analysing which AI-generated works merit copyright
protection. Moreover, clarity can be further ensured if some parameters can be laid down at
international level based on which each state can frame their own policies, prompting stability
while also providing room for flexibility. Furthermore, despite author’s inclination towards the
WMFH model and compulsory copyright registration model, the author proposes other
approaches including incorporating new inputs in the suggested models, making amendments,
providing a framework for special forms of AI contracts, granting copyright ownership to the
state, proposing a model on the lines of statutory licensing or limiting the time period of the
copyright protection to protect the AI-generated work can also be explored in order to adopt
the best policy.
Therefore, it can be concluded that it is imperative in the status quo that debates on the
intersection of AI and copyright law should be encouraged to keep pace with advancements in
technology.
Page | 103
NOTE OF THANKS
The Editorial Board, Coordinators and the Publishing Unit of the Journal of Innovation,
Competition & Information Law (JICIL) seek to express their gratitude to all members,
contributors, advisors and well-wishers who have been immensely important to the growth of
the journal and who continue to be involved in the discourse surrounding intellectual property,
technology and competition law.
We express our heartfelt gratitude to all editors and reviewers who have provided their valuable
time and incisive insights in the framing of this edition.
Finally, a special thank you to the Editors and Members who have played a crucial role in the
development and outcome of this publication. This would not have been possible without every
one of you.
Vedangini Bisht
Editor-in-Chief
Page | 104

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JOURNAL OF INNOVATION, COMPETITION

& INFORMATION LAW

9 JICIL (2) 2021

Nayanikaa Shukla Publishing Editor

Vedangini Bisht Editor-in-Chief

Cite as: 9, JICIL (2) 2021

▪ OPINION- LENIENCY IN THE DRAFT COMPETITION (AMENDMENT) BILL

▪ JURISDICTION: AN ISSUE ON INTERNET

▪ ANALYSING THE INTERPLAY BETWEEN COMPETITIVE MARKET STRUCTURES AND

▪ SAMIR AGARWAL V. COMPETITION COMMISSION OF INDIA: THE SUPREME

▪ THE SCOPE OF THE DIRECTOR GENERAL’S POWERS

▪ RETHINKING PLAGARISM AS COPYRIGHT INFRINGEMENT: A LEGAL

▪ A COMPREHENSIVE ANALYSIS OF THE CHALLENGES TO COPYRIGHT

FOUNDING EDITOR | Sameer Avasarala

CO-FOUNDING EDITORS | Samiya Zehra, Shashank Kanoongo

PUBLISHING EDITOR | Nayanikaa Shukla

EDITOR-IN-CHIEF | Vedangini Bisht

DEPUTY PUBLISHING EDITORS | Shreya Mukherjee, Ishika Garg

DEPUTY EDITORS-IN-CHIEF | Prajjwal Kushwaha, Srishti Suresh

EDITORIAL ADVISORS | Niti Richhariya, Swati Sharma

Executive Editors | Saurabh Agnihotri, Insaf Ahmad T.K,

Senior Associate Editors | Ameya Avinash Munzner Foujdar, Tawishi

1. Justice A. K Sikri, Former Judge, Supreme Court of India

Vedangini Bisht, Prajjwal Kushwaha, Srishti Suresh

Our Current Edition

OPINION: LENIENCY IN THE DRAFT COMPETITION (AMENDMENT) BILL 2020:

HOW EFFECTIVE WILL LENIENCY PLUS BE?

WITHDRAWAL OF LENIENCY APPLICATION

WILL THE WITHDRAWAL HELP CCI OR THE INFORMANT?

JURISDICTION: AN ISSUE ON INTERNET

- Carlen-Wendels, T. Nätjuridik, Stockholm, Norstedts Tryckeri

INTRODUCTION & GENERAL BACKGROUND OF THE ISSUE

CHALLENGES POSED BY SUCH JURISDICTIONAL ISSUES

requirements. The international system's underlying concepts of separation of sovereignties

B. Issue for every stakeholder

International Organisations: Because of overlapping thematic scopes or a geographical remit

Content takedown and withholding: How can stakeholders determine proportionate

Extradition: Extradition is an action wherein one jurisdiction delivers a person accused or

HOW DOES CROSS-BORDER JURISDICTION FUNCTION?

Jurisdiction encompasses several discrete concepts, including jurisdiction to prescribe,

E. Derived Jurisdiction Theory

THE AMBIGUOUS APPLICATION OF PRIVATE INTERNATIONAL LAW AND LACK OF

JURISDICTION UNDER CYBER CRIME CONVENTION, 2001

AMERICAN METHODS OF RESOLVING INTERNET JURISDICTIONAL ISSUES

INDIAN METHODS OF RESOLVING INTERNET JURISDICTIONAL ISSUES

A. Jurisdiction under the Code of Civil Procedure, 1908

B. Jurisdiction under Information Technology Act, 2000

Section 75 reads as:

“Act to apply for offence or contravention committed outside India:

RELEVANT LANDMARK CASES

A. Casio India Co. Limited v. Ashita Tele Systems Pvt. Limited35

• The website may have resulted in a commercial transaction.

D. Super Cassette Industries Ltd. Vs. Myspace Inc. and Anr41

E. World Wrestling Entertainment, Inc. vs. M/s. Reshma Collection &Ors42

CONCLUSION & SUGGESTIONS

ANALYZING THE INTERPLAY BETWEEN COMPETITIVE MARKET STRUCTURES

AND IPR PROTECTIONS THROUGH A STUDY OF ITS MUTUAL IMPACT ACROSS

INTRODUCING THE MUTUAL IMPACT OF THE OVERLAPPING LAWS- A STUDY OF DIFFERENT

A. How IP Laws become obstacles to the rudimentary objective behind Competition

i. Excessive Pricing by holders of Intellectual Property Right Protections

Imposing excessively high prices on goods might be considered as an anti-competitive action

An internationally recognised landmark example in this context would be the over-pricing of

ii. ‘Paying off Competition’ to Prolong Patent Protection

iii. Anticompetitive restrictive agreements by Trademark Holders