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India lacks a law protecting trade secrets

On June 9, 2013, Edward Joseph Snowden disclosed that he had leaked details of the Central Intelligence Agency’s covert operations around the world. In 2010, another Edward, United States army soldier Private Bradley Edward Manning, leaked classified United States military data, diplomatic cables, and war logs to Wikileaks. Both of them are being compared to Daniel Ellsberg, the former United States Military analyst who released the Pentagon Papers revealing information about U.S. Government policies on the Vietnam War. Besides governments around the world, these events have made companies nervous about the protection of their sensitive information. In this context, it is important to discuss the Indian law regarding the protection of trade secrets and the misappropriation of confidential information.

Trade secrets and industrial espionage

According to the World Intellectual Property Organisation, any confidential business information, which provides an enterprise a competitive edge, may be considered a “trade secret” and can include a wide array of things, such as formulae, advertising strategies, lists of suppliers and clients, and manufacturing processes. According to the American Uniform Trade Secrets Act (“UTSA”) a “trade secret” is any information that has independent economic value not readily available to others. The definition under the American Economic Espionage Act (“EEA”) is even broader. These trade secrets may be misappropriated through industrial espionage, which is the theft of trade secrets by removing, copying, or recording them so that a competitor may use them.

Coke's secret

In the United States, these acts are offences under the UTSA or the EEA. India however, does not have a formal legislation governing the protection of trade secrets, the misappropriation of confidential information, or industrial espionage. Confidential information and trade secrets are protected through contracts. Typically, employers restrict employees from leaking trade secrets or confidential information by having non-disclosure and confidentiality clauses in employment agreements. However, Indian courts have been reluctant to enforce such restrictive convenants and non-disclosure agreements, terming them as unenforceable under Section 27 (Agreements in restraint of trade) of the Indian Contract Act, 1872.

Even if such clauses were valid, there is no prohibition on the disclosure of confidential information and trade secrets — merely a contractual obligation. So, a person who is not privy to any agreement, such as a employer-employee agreement, has no obligation to protect any information he has received. The UTSA and the EEA prohibit the missappropriation of trade secrets by any third party even in the absence of any confidentiality agreement.

Indian courts however, have stated that if any person recieves some information in confidence, such a person cannot take unfair advantage or make profit out of the disclosure or use of that information. (See, for instance, Zee Telefilms v. Sundial Communications.) This is known as the “Springboard doctrine” and Indian courts have had to rely on common law principles and the decisions of foreign courts to adopt it.

Thus, the only remedy available is of a civil nature. In India, a person aggrieved in such cases can recieve nominal damages from the person charged with disclosure of confidential information. No Indian law prohibits or punishes industrial espionage.

A person can also leak trade secrets overseas through the Internet. Whereas the EEA prohibits a person from leaking trade secrets anywhere in the world, the Indian law on this point is not clear.

Intellectual-Property-LawArticle 39 of the Agreement on Trade Related Aspects of Intellectual Property Rights (“TRIPS”) provides for the protection of trade secrets. A party to the TRIPS, India has made sui generis legislation for the protection plant varieties and semi-conductor integrated circuits in the past. The Indian government can look into making sui generis legislation for the protection of trade secrets, instead of relying on common law principles and foreign precedents.

 

(Samar Jha is part of the faculty on myLaw.net.)

(Click here to learn more about our programme on Intellectual Property Law.)

 

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Who Watches the Watchdogs? Random thoughts on destroying monoliths

watchmen1

In September, 1986, when the first issue of a comic book miniseries called Watchmen hit the stands in the US, no one was really quite ready for it. Although he had already begun garnering respect in the comic book industry, Alan Moore was not yet the household name he is today, and his grim vision of the usually bright, cheerful and simplistic good-triumphs-over-evil world of superheroes was completely unprecedented. Of course, by now everyone with any interest in pop culture has at least heard of the Watchmen series. It is now considered a seminal work in not just the comic industry, but also in the world of English literature at large: in 2005, Time magazine included it in its list of the “All-Time 100 Greatest Novels”, the only graphic novel to be given that honour, and in 2009, against Alan Moore’s wishes, it was made into a major blockbuster by Zack Snyder.

220px-Alan_Moore_(2)

Alan Moore

It seems Alan Moore initially got the idea for Watchmen from a famous Latin phrase: “Quis custodiet ipsos custodes?” which can be literally translated to “Who will guard the guards themselves?”, or, more famously, “Who watches the watchmen?” (which also became the popular tagline for the series as well as the movie). The phrase is often attributed to Plato, because it just seems like something he would have said in the Republic whilst waxing eloquent on the nature of power and its corrupting influence on people who have it. But these words were not Plato’s, and the phrase has been taken out of context and given a deeper, more philosophical meaning than was originally intended.

At some point towards the end of the 1st century AD (or towards the beginning of the 2nd century AD; no one’s really sure), Juvenal, a Roman poet we know almost nothing about, wrote a collection of poems called the Satires. It included a poem which was quite unequivocally misogynistic, ruminating on women’s innate tendencies towards “immoral behaviour” and men’s inability to control it. The phrase comes from the following lines:

I know

the plan that my friends always advise me to adopt:

“Bolt her in, constrain her!” But who can watch

the watchmen? They keep quiet about the girl’s

secrets and get her as their payment; everyone hushes it up.

juvenal-1-sized

Juvenal

What Watchmen, and the phrase it originates from, illustrate starkly is the fact that things are not as they seem on the surface; culturally/historically accepted and defined “truths” are often unreliable. Watchmen was Alan Moore’s deconstruction of the superhero myth in real-world terms – where he explored the possibility that under the shiny, awe-inspiring surface, beings with godlike powers could be flawed, capricious, disturbed, violent and sociopathic individuals. The superhero as a noble, selfless force for good was a cultural monolith, seldom questioned as a trope. Alan Moore decided to question that one-dimensional viewpoint, and the result was a masterpiece. On a different level, the present use of “Who watches the watchmen” is in itself an example of how words can be de-contextualised and given a different, more socio-culturally acceptable meaning. It tells us that constant deconstruction and analysis is the very least of our responsibilities as thinking, rational beings.

My long-winded and clumsily constructed arguments above have a point, and I should really get to it.

On June 17, 2013, the Hindu ran a now (in)famous article on the now (in)famous order of the Madras High Court, stating unequivocally that the court had proclaimed that if an unmarried couple have sex, they will be considered married. The lack of a nuanced and balanced approach in the piece clearly showed that the reporter hadn’t spent too much time on reading and understanding the order and its context. Within a few hours, a number of articles criticising the Hindu’s simplistic coverage of the complex issue appeared all over the internet. However, by that time social media websites had already exploded with misplaced outrage and more than a few inappropriate jokes. Of course other news sites had also run similar stories, but The Hindu commands a certain degree of respect, even among its detractors, for its high standards of reportage and journalism – misunderstanding an issue isn’t usually a charge levelled against it. Fortunately, we live in an age in which information is readily available and can be disseminated within seconds. Public opinion which, for a while, was positioned strongly against the order is now balancing out as a more reasoned and informed discourse unfolds. The mainstream media stands as a source of factual information and is, by extension, regarded as a purveyor of truth. Here is another historical monolith on which society leans. This is not unreasonable given that searching for the truth and presenting it to the people has been the media’s fundamental function. But recent history has taught us that the media isn’t above selling news space, taking editorial mandates from large corporate investors, blurring the line between reportage and opinion, sensationalising the news through hyperbole and using questionable techniques to get a story. Now, for the consumer of mass media, the “truth” has become a far more complicated and difficult thing to get to.

Chennai_High_Court_1200x800Madras High Court  

It is clear now that the Madras High Court’s decision is quite progressive on women’s rights and reverses an extremely egregious order of the lower court. However, I used the term “misplaced outrage” earlier, because there should be outrage at how the Madras High Court seems to think that the only significant indicator of a marriage is sex. And if that isn’t the intention of the order, there should be outrage at how badly and dangerously the decision is worded. The Madras High Court has defended the order stating that it “protected Indian culture and welfare of women.” The biggest monolith in this case is this “Indian culture” that the court has tried so earnestly to protect – this vast, ethereal, omnipotent, nebulous thing which keeps floating in and out of our consciousness, this undefined entity which is powerful enough to unite a billion people, but so fragile that it needs protection at every moment, especially from the “sinful evil” of the west. “Indian culture” is apparently an intractable monolith that refuses to move with the times. It is formless, but alive. It is whatever a few old, conservative and powerful people say it is. And if they are to be believed, every time consenting adults want to have sex outside wedlock, or women wear skirts instead of saris, or you listen to pop music, it has a massive heart attack.

In India, both the media and the judiciary have a proud history of acting as society’s watchdogs. In their own ways, both constantly endeavour to get to the truth. But they are not infallible. It is essential for the citizens of a democracy to think for themselves, look at an issue from every perspective, get all the facts straight, listen to every argument and form an informed and intelligent opinion. Who watches the watchdogs? We do. It’s up to us to ensure that the pillars of democracy never become monoliths.

(Sayak Dasgupta wanders around myLaw.net looking for things to do. When he finds something to do, he fails at it.)

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Judicial appointments – old debate, new faces

The debate about who should appoint judges to the higher judiciary is back on the table. The independence of the judiciary is a key question in our democracy and I think it was the Union Minister of Law and Justice, Kapil Sibal, who put it back there. The Hindu quotes him arguing for a voice for the executive in the appointment of judges.

Mr. Sibal speaks
The Union Minister for Law and Justice speaks

This elicited some response from the Bar. Anil Divan, the President of the Bar Association of India, criticised the secrecy surrounding the Judicial Appointments Commission Bill and argued that Mr. Sibal’s proposal sought to recapture the executive’s primacy in judicial appointments.

The Bar Council of India also wanted in.

“… the BCI as well as state bar councils are also feeling that in the matter of appointments of High Court and SC judges, the bars should also have a say and the concerned bar should also be taken into confidence before the recommendations of names for the appointments.”

So it is not the best piece of drafting, but it is quite clear that the Bar Council of India was angling for representation on the proposed National Judicial Commission.

National Judicial Commission?

We’ll get there soon.

Okay, what’s the “collegium system”?

All appointments to the higher judiciary are made by the President of India. The President and the Union executive that the President’s office represents however, have almost no say in these appointments. The choice is made by a collegium of the most senior judges headed by the Chief Justice of India. If the appointment has to be made to a particular High Court, then senior judges of that High Court are also represented in the collegium.

Once this collegium recommends a name to the President of India, the appointment has to be made. The only influence that the executive of the Union or any of the states can bring to bear on the appointments process is by forwarding material relevant to the choice of a potential judge to the collegium. The collegium however, need not pay heed to the executive.

Woah! That sounds an awful lot like judges appointing judges. How did that happen?

During the last two decades of the previous century, the Indian judiciary appropriated for itself the right to appoint judges to the higher judiciary.

See the following extract from Article 124 of the Constitution of India.

 “Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years:

Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted:”

On a plain reading of this provision, the power to appoint judges to the Supreme Court of India is clearly vested in the President of India. After the third judgment in 1998 however, this provision and Article 217, which deals with the appointment of judges to the High Courts, had been interpreted by the Supreme Court of India to mean the collegium system.

Read the three judges cases on Indiankanoon:

S.P. Gupta v. President of India and Others (1981)

Supreme Court Advocates-on-Record Association and Another v. Union of India (1993)

In the Supreme Court of India (In Re. Appointment and Transfer of Judges) Special Reference Case 1 of 1998 (1998)

While it was the culmination of the judiciary’s assertion of independence after some of the excesses of Indira Gandhi’s regime, the use of the collegium system to appoint judges has coincided with a period of increased focus on corruption and the lack of transparency in the judiciary. Mr. Diwan’s column provides more historical context to the current debate.

Leaving aside questions about exceeding the judicial brief, what is the alternative to the “collegium system”?

The National Commission for Review of the Working of the Constitution (“NCRWC“), which submitted its report in 2002, had recommended the establishment of a National Judicial Commission to make appointments to the higher judiciary.

You can watch Mumbai-based Senior Advocate Iqbal Chagla endorse the National Judicial Commission proposal in this video. His argument is that the collegium system places too much faith in the individuals at the top of the judiciary. Justice Krishna Iyer calls the system “outrageous” here because of the scope it allows for favouritsm and its lack of emphasis on a thorough investigation into the antecedents and social philosophy of a judge. The former Chief Justice of India, P.N. Bhagwati, says here, that he is opposed to the collegium system because it often leads to bargaining.

According to the NCRWC, the National Judicial Commission would have the Chief Justice of India as its Chairman and two of the senior most judges of the Supreme Court, the Union Minister for Law and Justice, and an eminent person appointed by the President after consulting with the Chief Justice of India, as its Members.

Are there other opinions about the constitution of the National Judicial Commission?

In the video linked above, Mr. Chagla acknowledged the “vexed” nature of the question about what the constitution of the National Judicial Commission should be, but suggested that it should comprise the Chief Justice of India, the Chief Justice of any other court, eminent lawyers, the Leader of the House, and the Leader of the Opposition. The latest missives from Mr. Sibal and the Bar Council of India argue for representation from the Union executive and the relevant Bar in the National Judicial Commission.

There is another opinion though, and Mr. Chagla refers to it later in the video  — that the question of who will be part of the National Judicial Commission is not as important as accepting the principle of it. I think Sriram Panchu expressed it best.

“But the important thing is not the composition of the Commission. As important as it is, it is also the processes being followed. Today, I put my faith more in processes than in people.”

 

(Aju John is part of the faculty on myLaw.net.)

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Controversial Madras HC order signals more progress on maintenance rights in “relationships akin to marriage”

Relationships akin to marriageThe times, they are, a-changing. The final draft of Madhya Pradesh’s Women’s Policy, 2013 – 2017 recognises the need to protect the legal rights of partners in live-in relationships. Yesterday’s controversial order of the Madras High Court equated some such relationships to marriage. Justice Karnan’s order protects the rights of women in partnerships outside of marriage to maintenance and the rights of children born to such couples. The Supreme Court too, in Velusamy v. Patchiammal in 2010, progressively interpreted and applied maintenance laws. It is high time the legislative machinery caught up.

Even parts of the West have been slow to accept this change. For instance, in the U.K., neither partner can legally claim maintenance after the end of such a relationship. However, children born in such relationships are guaranteed child support from the party that holds legal guardianship. Perhaps the most pragmatic view has been taken in the Netherlands. The Dutch recognise three kinds of living arrangements — co-habitation agreements, registered partnerships, and marriage. Ending or dissolving any of these may give rise to the right to maintenance and regardless of the relationship between the parents; Dutch law ensures equal parenting to children. It is time to take a leaf out of their books.

It is especially vital to provide access to basic maintenance in India, because of the large numbers without access to mainstream education. The Madhya Pradesh government will set a very good example if its innovative Draft Women’s Policy is sanctioned and implemented with the spirit intact. Similarly, it is also time to think about the innumerable women and children who can now rightfully claim a life with dignity because our courts are recognising change.

(Suhasini Rao Kashyap is part of the faculty on myLaw.net.)

 

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WIPO won’t turn a blind eye to the needs of the Visually Impaired anymore…

WIPoTreaty_Facebook

June 19, 2013: Diplomats from 186 member countries of the World Intellectual Property Organisation (“WIPO”) have gathered at Marrakesh in Morocco to negotiate the text of the Treaty on Limitations and Exceptions for Visually Impaired Persons/Persons With Print Disabilities (“the Text”).

The purpose of such a treaty is to ease access to books for the blind, visually impaired, and other print-disabled persons. With ninety per cent of the 314 million blind and visually impaired persons residing in developing countries, the conference is seen as an important occasion to negotiate limitations and exceptions in domestic copyright laws that will allow special provisions for the visually impaired. For instance, the Text permits certain authorised entities to make available to the visually impaired (and other beneficiaries), a copy of a work in an accessible format, without the authorisation of the copyright holder. Further, the Text also provides for the negotiation of licenses with the copyright holders to exchange special formats across borders, or to produce their own materials to make the work accessible to the visually impaired.

The conference is expected to be the culmination of years of discussions on making more works under copyright available for the visually impaired in special formats and accessible versions. India has one of the largest populations of visually impaired persons and has been at the forefront of the discussions on disability rights within intellectual property law. Rahul Cherian, one of the founders of the Inclusive Planet Centre for Disability Law and Policy, had been involved in drafting the Text.

Groups such as the Motion Picture Association of America have vociferously opposed any such limitation or exception in the copyright laws. They have even lobbied for stricter protection for Digital Rights Management technology in the Text, as well as the removal of any references to “fair use” or “fair dealing”.

(Samar Jha is part of the faculty on myLaw.net.)