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Online Certificate Course

on

PAPER 2: REGULATORY FRAMEWORK

PART A INTERNATIONAL INSTRUMENTS

Prepared by

Versha VahiniAssistant Research Professor

Indian Law Institute

New Delhi

FOR

THE INDIAN LAW INSTITUTE(Deemed University)

Bhagwandas RoadNew Delhi - 110001

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Table of Contents

I. International instruments relating to cyber crimesI.A European Convention on Cyber Crimes

I.B Recognition of Foreign Judgments

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II. International Instruments Relating to E-CommerceII.A UNCITRAL Model Law on Electronics Commerce 1996

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III International Instruments relating to Intellectual Property RightsIII.A Berne Convention

III.B Rome Convention for the Protection of Performers, Producers ofPhonograms and Broadcasting Organisations (1961)

III.C World Intellectual Property Organization Copyright Treaty (WPT)1996

III.D World Intellectual Property Organization Performances andPhonograms Treaty (WPPT) 1996

III.E Uniform Domain Name Dispute Resolution Policy (UDRP) (AsApproved by ICANN on October 24, 1999)

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I. INTERNATIONAL INSTRUMENTS RELATING TO CYBER CRIMES

I.A European Convention on Cyber Crimes1

The European Convention on Cyber Crime came into force in June 2001 toaddress the urgent need to pursue a common criminal policy against cyber-

crimes. The Council of Europe, along with the U.S., Canada and Japan signed a

Convention on Cyber crime. The Convention has three aims: to harmonize

substantive law; to align procedural laws and to implement an effective system

of international co-operation.

It is the first international treaty on crimes committed via the Internet andother computer networks. However, the main focus of the Convention is to deal

with infringements of copyright, computer-related fraud, child pornography and

violations of network security. The Convention tends to deal with these

problems by providing for a common perception on cyber crime, authentication

of cyber crime acts, jurisdiction and international cooperation in dealing with it.

The Convention contains four chapters. First chapter dealing with

definitions whereas second chapter specifies the measures that are to be taken by

the signing nations. The third chapter makes it mandatory for the nations to

cooperate with each other to deal effectively with the cyber crime. The fourth

chapter provides for signature by the parties to the Convention.

In chapter one, the Convention defines the terms such as Computer

System,2 Computer data,3 Service provider4and Traffic data.5 The chapter 2 deals

1Full draft available at:

http://www.interpol.int/Public/TechnologyCrime/Conferences/6thIntConf/ExplanatoryReport.pdf and

http://www.privacyinternational.org/issues/cybercrime/coe/cybercrime-final.html2Computer System: means any device or a group of inter-connected or related devices, one or more of

which, pursuant to a program, performs automatic processing of data.3 Computer data: means any representation of facts, information or concepts in a form suitable for

processing in a computer system, including a program suitable to cause a computer system to perform a

function.4Service provider: means (i) any public or private entity that provides to users of its service the ability to

communicate by means of a computer system, and (ii) any other entity that processes or stores computer

data on behalf of such communication service or users of such service.5

Traffic data: means any computer data relating to a communication by means of a computer system,generated by a computer system that formed a part in the chain of communication, indicating the

communications origin, destination, route, time, date, size, duration, or type of underlying service.

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with the measures to be taken at the National Level. The measures relates to

Substantive Criminal Law, Procedural Law and Jurisdiction.

The first section of chapter II deals with measures relating to substantive

criminal law is divided into 5 titles. The Titles 1 deals with Offences against the

confidentiality, integrity and availability of computer data and systems,

contained in articles 2 to 6. This makes it mandatory for the state parties to the

Convention to recognizes following as offences under domestic law:

i. unauthorised intentional access to a computer system,

ii. unauthorised intentional interception, made by technical means, of non-

public transmissions of computer data to, from or within a computer

system,

iii. intentional damaging, deletion, deterioration, alteration or suppression of

computer data without right.

iv. intentional and unauthorised serious hindering of the functioning of a

computer system by inputting, transmitting, damaging, deleting,

deteriorating, altering or suppressing computer data,v. intentional and unauthorised production, sale, procurement for use,

import, distribution or otherwise making available of a device, including a

computer program, designed or adapted primarily for the purpose of

committing any of the offences mentioned in (i) to (iv) above,

vi. intentional and unauthorised production, sale, procurement for use,

import, distribution or otherwise making available of a computer

password, access code, or similar data by which the whole or any part of a

computer system is capable of being accessed with intent that it be used

for the purpose of committing any of the offences mentioned in (i) to (iv)

above,

vii. the possession of an item referred to in paragraphs (v) and (vi) above,

with intent that it be used for the purpose of committing any of the

offences mentioned in (i) to (iv) above.

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Title 2 relates to Computer-related offences and contains articles 7 and

8. These articles stipulate that each country shall establish the following as

offences under domestic law:

i. intentionally and unauthorizedly modifying or destroying data in any

manner so as to fabricate false evidence,

ii. intentionally and unauthorizedly causing loss of property to another by

any interference with the functioning of a computer system, or with

fraudulent or dishonest intent of procuring, without right, an economic

benefit for oneself or for another.

Title 3 relates to Content-related Offences and contains articles 9. This

article stipulates that each party shall establish child pornography, promoted and

procured in any manner, as offences under domestic law if done intentionally

and unauthorizedly.

"Child pornography" includes pornographic material that visually depicts:

a. a minor(The term "minor" includes all persons less than 18 years of age. The

domestic law may, however, require a lower age-limit, which shall be not less

than 16 years.) engaged in sexually explicit conduct;

b. a person appearing to be a minor engaged in sexually explicit conduct;

c. realistic images representing a minor engaged in sexually explicit conduct.

Title 4 relates to Offences Related to Infringements of Copyright and

Related Rights and contains article 10.This article stipulates that a Convention

Country shall establish proper legal framework for addressing infringement of

copyright and related rights.

Title 5 relates to Ancillary Liability and Sanctions and contains articles

11 to 13 about abetment and attempt to commit offences and corporate liability

(Four conditions need to be met for liability to attach: (1) one of the offences

described in the Convention must have been committed, (2) the offence must

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have been committed for the benefit of the legal person, (3) a natural person who

has a high position in the organization must have committed the offence, (4) the

person who has a leading position must have acted on a power of representation

or an authority to take decisions or to exercise control) .

Section 2 of chapter II dealing with Procedural law again is divided into

five titles. Title 1 relates to Common provisions, contained in articles 14 and 15,

which confer obligations upon a convention country to establish the powers and

procedures for the purpose of "specific criminal investigations or proceedings".

The state parties are also under obligation to balance the requirements of law

enforcement with the protection of human rights and liberties while exercising

those powers.

Title 2 relates to Expedited preservation of stored computer data,

contained in articles 16 and 17. The articles require each party to enact laws to

preserve computer data, which is particularly vulnerable to loss or modification.

The state party is required to enact suitable laws in respect of traffic data that is

to be preserved under article 16. Such laws should ensure the expeditiouspreservation of traffic data regardless of whether one or more service providers

were involved in the transmission of that communication. And also ensure the

expeditious disclosure to the Partys competent authority or a person designated

by that authority, of a sufficient amount of traffic data to enable the Party to

identify the service providers and the path through which the communication

was transmitted.

Title 3 relates to production order under article 18 whereas Title 4 relates

to Search and Seizure of Stored Computer Data contained in article 19 under

which a convention country is required to empower its competent authorities to

search or access a computer system and computer-data storage medium in which

computer data may be stored in its territory. The power must extend to data in

other computer systems in the territory provided that it is lawfully accessible

from or available to the initial system.

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The domestic law must empower the seizure and copying of the accessed

computer data and also empower the ordering of knowledgeable persons to give

suitable assistance.

Title 5 relates to Real-time Collection of Computer Data contained in

articles 20 and 21 requiring a convention country to enact legislation to compel a

service provider to collect, record or co-operate and assist competent authorities

in the collection or recording of traffic data or content data, in real-time,

associated with specified communications in its territory transmitted by means

of a computer system. It is, however, optional for the domestic law to ensure the

real-time collection or recording of traffic data associated with specified

communications in its territory.

Last section 3 of Chapter II deals with Jurisdiction, contained in article

22, which requires each party to enact legislation to establish jurisdiction over

any offence established in accordance with articles 2 11 of this Convention,

when the offence is committed: in its territory; or on board a ship flying the flag

of that Party; or on board an aircraft registered under the laws of that Party; orby one of its nationals, if the offence is punishable under criminal law where it

was committed or if the offence is committed outside the territorial jurisdiction

of any State.

Chapter III dealing with International Co-operation is divided into two

sections comprising of general principles and certain specific principles of

international cooperation. Section 1 dealing with General Principles is spreadover in four titles of which Title 1 General Principles Relating to International

Co-operation consisted of article 23 mandates that the parties shall co-operate

with each other, in accordance with:

i. the provisions of this chapter,

ii. through application of relevant international instruments on international

co-operation in criminal matters,iii. arrangements agreed on the basis of uniform or reciprocal legislation, and

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iv. domestic laws

Title 2 is entitled Principles Relating to Extradition consisted of article

24. It makes it obligatory for the state parties to include the offence created in this

Convention in their extradition treaties. They are required to declare these

offences as extraditable provided that they are punishable under the laws of both

parties concerned by deprivation of liberty for a maximum period of at least one

year, or by a more severe penalty. The Convention permits that the extradition

shall be subject to the conditions provided for by the law of the requested party

or by applicable extradition treaties, including the grounds on which the

requested party may refuse extradition.

Title 3 is entitled General Principles Relating to Mutual Assistance and

consists of articles 25 and 26 require the parties to assist each other for

investigation and enact laws to carry out obligations set forth in articles 27 35.

Title 4 is titled Procedures pertaining to mutual assistance requests in the

absence of applicable international agreements and consists of articles 27 and

28. These articles apply where there is no mutual assistance treaty or

arrangement on the basis of uniform or reciprocal legislation in force between

the requesting and requested parties.

Section 2 of Chapter III lays down Specific Provisions for cooperation.

This section is spread over to four titles. Title 1 is entitled Mutual assistance

regarding provisional measures and consists of article 29 and 30 allows Parties

to request another Party to order or otherwise obtain the expeditious

preservation of electronic data, in respect of which the requesting Party intends

to submit a request for mutual assistance with respect to the search or similar

access, seizure or similar securing, or disclosure of the data. For the purposes of

responding to a request, dual criminality shall not be required as a condition to

providing such preservation (A Party that requires dual criminality as a

condition for responding to such a request may reserve the right to refuse the

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request for preservation under this article in cases where it has reason to believe

that at the time of disclosure the condition of dual criminality cannot be fulfilled.

Title 2 is entitled Mutual Assistance Regarding Investigative Powers

and contains articles 31 to 34 providing that a party may request another party to

search or similarly access, seize or similarly secure, and disclose data stored by

means of a computer system located within the territory of the requested party,

including data that has been preserved pursuant to article 29.

Title 3 is entitled 24/7 Network and contains article 35.

This article requires each party to designate a point of contact available on

a 24 hour, 7-day per week basis providing immediate assistance (Such assistance

includes facilitating, or, if permitted by its domestic law and practice, directly

carrying out: (a) provision of technical advice; (b) preservation of data pursuant

to articles 29 and 30; and (c) collection of evidence, giving of legal information,

and locating of suspects.) for: (i). investigations or proceedings concerning

criminal offences related to computer systems and data, and (ii). the collection of

evidence in electronic form of a criminal offence.

A partys point of contact is required to have the capacity to carry out

communications with the point of contact of another party on an expedited basis.

If the point of contact designated by a party is not part of that partys authority

or authorities responsible for international mutual assistance or extradition, the

point of contact shall ensure that it is able to co-ordinate with such authority or

authorities on an expedited basis. Each party shall ensure that trained and

equipped personnel are available in order to facilitate the operation of the

network.

Chapter IV Signature and Entry into force talks about the signature and

mode of bringing the Convention into force.

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whether the foreign court properly accepted personal jurisdiction over the

defendant

whether the defendant was properly served with notice of the proceedings

and given a reasonable opportunity to be heard which raises general

principles of natural justice and will frequently be judged by international

standards (hence, the rules for service on a non-resident defendant outside

the jurisdiction must match general standards and the fact that the first

instance court's rules were followed will be irrelevant if the international

view is that the local system is unjust

whether the proceedings were tainted with fraud and

whether the judgment offends the public policy of the local state.

Grounds for non-recognition can be predicated upon:

Lack of conclusiveness: if the judgment was rendered under a system which

does not provide impartial tribunals or procedures compatible with the

requirements of due process of law

the foreign court did not have personal jurisdiction over the defendant

The foreign court did not have jurisdiction over the subject matter

The defendant in the proceedings in the foreign court did not receive notice

of the proceedings in sufficient time to enable him to defend

The judgment was obtained by fraud

The cause of action on which the judgment is based is repugnant to the public

policy of the state where enforcement is sought

The judgment conflicts with another final and conclusive judgment

The proceeding in the foreign court was contrary to an agreement between

the parties under which the dispute in question was to be settled otherwise

than by proceedings in that court; or

In the case of jurisdiction based only on personal service, the foreign court

was a seriously inconvenient forum for the trial of the action; or

The judgement seeks to enforce the revenue and taxation laws of a foreign

jurisdiction.

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II. INTERNATIONAL INSTRUMENTS RELATING TO E-COMMERCE

II.A UNCITRAL Model Law on Electronics Commerce 1996

There has been a major change in the means of communication, which hasaffected the way business is done. The trading partners are using computers and

other technology to interact with each other. The change in technology has made

obsolete many a legal concepts. Moreover, the existing domestic legislations

governing communication and storage of information is inadequate because it

does not contemplate the use of electronic commerce. In certain cases, existing

legislation imposes or implies restrictions on the use of modern means of

communication, for example by prescribing the use of "written", "signed" or

"original" documents. While a few countries have adopted specific provisions to

deal with certain aspects of electronic commerce, there exists no legislation

dealing with electronic commerce as a whole. This may result in uncertainty as to

the legal nature and validity of information presented in a form other than a

traditional paper document. Moreover, while sound laws and practices are

necessary in all countries where the use of EDI and electronic mail is becoming

widespread, this need is also felt in many countries with respect to such

communication techniques as telecopy and telex.

Therefore, in order to promote harmonization and unification of

international trade laws of different countries by removing unnecessary obstacles

to international trade caused by inadequacies and divergences in the law

affecting trade, the UNCITRAL Model Law on Electronic Commerce was

adopted by the United Nations Commission on International Trade Law

(UNCITRAL) in 1996.

The purpose of the Model Law is to:

1. Offer national legislators a set of internationally acceptable rules as to how a

number of legal obstacles may be removed, and how a more secure legal

environment may be created for "electronic commerce".

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2. The principles expressed in the Model Law are also intended to be of use to

individual users of electronic commerce in the drafting of some of the

contractual solutions that might be needed to overcome the legal obstacles to

the increased use of electronic commerce.

3. To help to remedy disadvantages stemming inadequate disparate and

uncertain domestic legislations related to international trade, a significant

amount of which is linked to the use of modern communication techniques.

4. To provide, in certain cases, as a tool for interpreting existing international

Conventions and other international instruments that create legal obstacles to

the use of electronic commerce, for example by prescribing that certain

documents or contractual clauses be made in written form.

5. Furthermore, at an international level, the Model Law may be a between

those States parties to such international instruments, the adoption of the

Model Law as a rule of interpretation might provide the means to recognize

the use of electronic commerce and obviate the need to negotiate a protocol to

the international instrument involved.

6. The objectives of the Model Law, which include enabling or facilitating the

use of electronic commerce and providing equal treatment to users of paper-

based documentation and to users of computer-based information, are

essential for fostering economy and efficiency in international trade. By

incorporating the procedures prescribed in the Model Law in its national

legislation for those situations where parties opt to use electronic means of

communication, an enacting state would create a media-neutral environment.

The Model Law is intended to serve as a model for the evaluation and

modernization of the laws and practices in the field of commercial relationships

involving the use of computerized or other modern communication techniques,

and for the establishment of relevant legislation where none presently exists.

The United Nations Commission on International Trade Law

recommended giving:

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1. Evidentiary value to computer records in litigations so as to keep pace with

developments in technology

2. Validity to the transactions or documents to be recorded and transmitted in

computer-readable form.

3. Authentication through electronic means

4. Legal validity to the submission of documents in computer-readable form to

those administrative services which have acquired the necessary equipment

and established the necessary procedures.

III INTERNATIONAL INSTRUMENTS RELATING TO INTELLECTUAL

PROPERTY RIGHTS

III.A Berne Convention

Berne Convention 1886 protects the rights in Literary and Artistic Works,

which was completed at Paris on May 4, 1896; revised at Berlin on November 13,

1908; completed at Berne on March 20, 1914; revised again at Rome on June 2,

1928; at Brussels on June 26, 1948; at Stockholm on July 14, 1967; and at Paris on

July 24, 1971; and amended on September 28, 1979.

In article 1, the Convention provides for the constitution of a Union for the

protection of the rights of authors in their literary and artistic works. The literary

and artistic works include every production in the literary, scientific and artistic

domain, whatever may be the mode or form of its expression, such as books,

pamphlets and other writings; lectures, addresses, sermons and other works of

the same nature; dramatic or dramatic-musical works; choreographic works and

entertainments in dumb show; musical compositions with or without words;

cinematographic works to which are assimilated works expressed by a process

analogous to cinematography; works of drawing, painting, architecture,

sculpture, engraving and lithography; photographic works to which are

assimilated works expressed by a process analogous to photography; works of

applied art; illustrations, maps, plans, sketches and three-dimensional works

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relative to geography, topography, architecture or science. The Convention also

makes it mandatory to protect the translations, adaptations, arrangements of

music and other alterations of a literary or artistic work as original works

without prejudice to the copyright in the original work.

The Convention, however, leaves it to the member countries whether or

not to extend protection and the form of protection to the official texts of a

legislative, administrative and legal nature and to official translations of such

texts. With respect to the works of applied art and industrial designs, the

member countries are free to determine the extent and conditions of protection.

However, the Conventions states that if the works protected in the country of

origin solely as designs and models shall be entitled in another country of the

Union only to such special protection as is granted in that country to designs and

models; If no such special protection is granted in that country, such works shall

be protected as artistic works.

The encyclopaedias and anthologies, by reasons of the selection and

arrangement of their contents are protected without prejudice to the copyright in

each of the works forming part of the collections. No protection, under

Convention, is granted to the news of the day or to miscellaneous facts having

the character of mere items of press information.

The Convention leaves it the member countries to exclude in their

legislations specifically the items not be accorded protection. The exclusion list

may include political speeches and speeches delivered in the course of legal

proceedings etc. The member countries are free to determine the condition under

which lectures, addresses and other works of the same nature which are

delivered in public may be reproduced by the press, broadcast, communicated to

the public by wire and made the subject of public communication as envisaged

in article 11bis(1) of this Convention, when such use is justified by the

informatory purpose. Nevertheless, the author shall enjoy the exclusive right of

making a collection of his works mentioned in the preceding paragraphs.

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Article 3 lays down the criteria for eligibility for protection such as

nationality of the author, place of publication of work, residence of author and

simultaneous publication etc. Whereas article 4 lays down the criterion for

eligibility for protection of cinematographic works on the basis of his place of

headquarter or habitual residence or works of architecture on the basis of place/

country of erection of architecture etc.

Article 5 enumerates the rights that may be guaranteed. An author shall

enjoy, in respect of works, which are protected under this Convention, in

countries other than the country of origin, the rights which their respective laws

do now or may hereafter grant to their nationals. The enjoyment and exercise of

these rights, however, shall not be subject to any formality. Such enjoyment and

such exercise shall be independent of the existence of protection in the country of

origin of the work. It means that the extent of protection, as well as the means of

redress afforded to an author to protect his rights, shall be governed exclusively

by the laws of the country where protection is claimed.

Protection in the country of origin6 is governed by domestic law.

However, if the author is not a national of the country of origin of the work, he

shall enjoy in that country the same rights as national authors.

The above mentioned rights are guaranteed only to the national of the

countries of the Union and the countries of the Union are under compulsion to

afford these rights. But where the country, which is outside the Union fails to

protect in an adequate manner the works of authors who are nationals of one of

the countries of the Union, the latter country under article 6 may restrict the

6Article 5(4) The country of origin shall be considered to be:

(a) in the case of works first published in a country of the Union, that country; in the case of works

published simultaneously in several countries of the Union which grant different terms of protection, the

country whose legislation grants the shortest term of protection;

(b) in the case of works published simultaneously in a country outside the Union and in a country of the

Union, the latter country;

(c) in the case of unpublished works or of works first published in a country outside the Union, without

simultaneous publication in a country of the Union, the country of the Union of which the author is a

national, provided that:

(i) when these are cinematographic works the maker of which has his headquarters or his habitual residence

in a country of the Union, the country of origin shall be that country, and

(ii) when these are works of architecture erected in a country of the Union or other artistic worksincorporated in a building or other structure located in a country of the Union, the country of origin shall be

that country.

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protection given to the works of authors who are, at the date of the first

publication thereof, nationals of the other country and are not habitually resident

in one of the countries of the Union. But the countries of the Union which restrict

the grant of copyright in accordance with this article shall give notice thereof to

the Director General of the World Intellectual Property Organization (hereinafter

designated as the Director General) by a written declaration specifying the

countries in regard to which protection is restricted, and the restrictions to which

rights of authors who are nationals of those countries are subjected. The Director

General shall immediately communicate this declaration to all the countries of

the Union.

The Convention also provides for protection of moral rights as well,

which includes right to claim authorship of the work and to object to any

distortion, mutilation or other modification of, or other derogatory action in

relation to his work, which would be prejudicial to his honor or reputation. Such

rights shall be maintained even after his death until the expiry of the economic

rights. Redressal for safeguarding the rights granted by this article shall be

governed by the legislation of the country where protection is claimed.

Article provides for term of protection generally as well as for different

categories of works. Generally the term of protection shall be the life of the

author and 50 years after his death. In the case of cinematographic works, the

term of protection shall expire fifty years after the work has been made available

to the public with the consent of the author, or, failing such an event within fifty

years from the making of such a work. In the case of anonymous or

pseudonymous works, the term of protection granted by this Convention shall

expire fifty years after the work has been lawfully made available to the public.

However, when the pseudonym adopted by the author leaves no doubt as to his

identity, the term of protection shall be that provided in paragraph (1). The

countries of the Union are not obliged to protect anonymous or pseudonymous

works in respect of which it is reasonable to presume that their author has been

dead for fifty years.

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With respect to the protection of photographic works and works of

applied art, it is open for the countries to determine the term of protection. Such

term, however, should last at least until the end of a period of twenty-five years

from the making of such a work. These terms referred in the Convention are

minimum standards and the countries are free to grant a term of protection in

excess of those provided in the Convention. In case of the works of joint

authorship, under article 7bis, the term of protection shall be measures from the

death of the author shall be calculated from the death of the last surviving

author.

The authors of literary and artistic works protected by this Convention

shall enjoy under article 8, the exclusive right of making and of authorizing the

translation of their works throughout the term of protection of their rights in the

original works and under article 9, the exclusive right of authorizing the

reproduction of the works, in any manner and form. For that matter, any sound

or visual recording shall be considered as a reproduction for the purposes of this

Convention.

Under article 10, the Convention provides permissible free and fair use of

the works, which have already been lawfully made available to the public for

certain purposes such as for quotation, including quotations from newspaper

articles and periodicals in the form of press summaries and for utilization by way

of illustration in publications, broadcasts and sound or visual recordings for

teaching. The user, however, has to mention the source and the name of the

author if it appears thereon. Article 10bis further provides free and fair use. In

this regard, the member countries are free to permit the reproduction by the

press, the broadcasting or the communication to the public by wire of articles

published in newspapers or periodicals on current economic, political or

religious topics, and of broadcast works of the same character, in cases in which

the reproduction, broadcasting or such communication thereof is not expressly

reserved. But in such cases also the source has to be indicated and in case of

breach of this obligation, legal consequences have to be prescribed by the

member country. The countries may also determine the conditions under which,

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for the purpose of reporting current events by means of photography,

cinematography, broadcasting or communication to the public by wire, literary

or artistic works seen or heard in the course of the event may, to the extent

justified by the informatory purpose, be reproduced and made available to the

public.

Article 11 specifically provides for certain rights in dramatic and musical works

such as right to authorizing the public performance of their works including

such performance by any means or process; any communication to the public of

the performance of their works. The authors of dramatic-musical works shall

enjoy, during the full term of their rights in the original works, the same rights

with respect to translations thereof. Under article 11bis, the authors of literary

and artistic works also enjoy the exclusive right of authorizing the broadcasting

of their works or the communication thereof to the public by any other means of

wireless diffusion of signs, sounds or images; any communication to the public

by wire or by re-broadcasting of the broadcast of the work, when this

communication is made by an organization other than the original one; the

public communication by loudspeaker or any other analogous instrument

transmitting, by signs, sounds or images, the broadcast of the work. The member

countries are free to govern the above-mentioned right.

Under article 11ter, the authors of literary works also enjoy the exclusive right of

authorizing the public recitation of their works, including such public recitation

by any means or process; any communication to the public of the recitation of

their works. Under article 12 the authors of literary or artistic works also enjoy

the exclusive right of authorizing adaptations, arrangements and other

alterations of their works.

Under article 14, the authors of literary or artistic works shall have the

exclusive right of authorizing: the cinematographic adaptation and reproduction

of these works, and the distribution of the works thus adapted or reproduced;

the public performance and communication to the public by wire of the works

thus adapted or reproduced. Whereas under article 14bis provides for protection

of cinematographic works as original works, without prejudice to the copyright

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in any work which may have been adapted or reproduced. The owner of

copyright in a cinematographic work shall enjoy the same rights as the author of

an original work, including the rights referred to in the preceding article. The

ownership of copyright in a cinematographic work shall be a matter for

legislation in the country where protection is claimed. Detailed provisions are

made in article 14bis in this regard.

Article 15 mentions about the persons, who are eligible to claim protection

under the Convention. In case of literary or artistic work, it is the author, whose

name appears on the work in the usual manner, including the name of

pseudonym, where pseudonym adopted by the author leaves no doubt as to his

identity. In case of cinematographic work, the person or body corporate whose

name appears on a cinematographic work. In case of anonymous or

pseudonymous works, other than those referred to in earlier, the publisher

whose name appears on the work shall, in the absence of proof to the contrary,

be deemed to represent the author, and in this capacity he shall be entitled to

protect and enforce the author's rights. The provisions of this paragraph shall

cease to apply when the author reveals his identity and establishes his claim to

authorship of the work.

In the case of unpublished works where the identity of the author is

unknown, but where there is every ground to presume that he is a national of a

country of the Union, it shall be a matter for legislation in that country to

designate the competent authority which shall represent the author and shall be

entitled to protect and enforce his rights in the countries of the Union.

Procedure for protectionUnder article 16, in case of infringement, the infringing copies of the work

are liable to be seized in any country of the Union where the work enjoys legal

protection in accordance with the legislation of each country. It is also applicable

to the re-productions coming form a country, where the work is not protected, or

has ceased to be protected.

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Article 21 provides for special provisions regarding developing countries,

which are enumerated in the appendix.

Assembly: Constitution, functions, voting & quorum and meetings etc.

The article 22 provides for constitution of an Assembly consisting ofsignatory countries of the Union. The Government of each country shall be

represented by one delegate, who may be assisted by alternate delegates,

advisors, and experts. The Assembly shall - (i) deal with all matters concerning

the maintenance and development of the Union and the implementation of this

Convention; (ii) give directions concerning the preparation for conferences of

revision to the International Bureau of Intellectual Property (hereinafter

designated as the International Bureau) referred to in the Convention

Establishing the World Intellectual Property Organization (hereinafter

designated as the Organization), due account being taken of any comments

made by those countries of the Union which are not bound by articles 22 to 26;

(iii) review and approve the reports and activities of the Director General of the

Organization concerning the Union, and give him all necessary instructions

concerning matters within the competence of the Union; (iv) elect the members

of the Executive Committee of the Assembly; (v) review and approve the reports

and activities of its Executive Committee, and give instructions to such

Committee; (vi) determine the program and adopt the biennial budget of the

Union, and approve its final accounts; (vii) adopt the financial regulations of the

Union; (viii) establish such committees of experts and working groups as may be

necessary for the work of the Union; (ix) determine which countries not members

of the Union and which intergovernmental and international non-governmental

organizations shall be admitted to its meetings as observers; (x) adopt

amendments to articles 22 to 26; (xi) take any other appropriate action designed

to further the objectives of the Union; (xii) exercise such other functions as are

appropriate under this Convention; (xiii) subject to its acceptance, exercise such

rights as are given to it in the Convention establishing the Organization.

In the Assembly each member country shall have one vote and one-half of

the countries members of the Assembly shall constitute a quorum. The decisions

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of the Assembly shall require two-thirds of the votes cast. Abstentions shall not

be considered as votes.

The Assembly shall meet once in every second calendar year in ordinary

session upon convocation by the Director General and in the absence of

exceptional circumstances, during the same period and at the same place as the

General Assembly of the Organization. Whereas the Assembly shall meet in

extraordinary session upon convocation by the Director General, at the request of

the Executive Committee or at the request of one-fourth of the countries

members of the Assembly.

Executive Committee: Constitution, Composition, Number of members,

Geographical distribution; special agreement, Term, limits of re-eligibility,rules of election, Tasks, Convocation, Quorum, voting, Observers, Rules ofprocedure

The Assembly shall have an Executive Committee, which shall be

consisted of countries elected by the assembly from among member countries.

The Government of each country member of the Executive Committee shall be

represented by one delegate, who may be assisted by alternate delegates,

advisors, and experts. The number of countries members of the Executive

Committee shall correspond to one-fourth of the number of countries members

of the Assembly. In electing the members of the Executive Committee, the

Assembly shall have due regard to an equitable geographical distribution and to

the need for countries party to the Special Agreements which might be

established in relation with the Union to be among the countries constituting the

Executive Committee. Members of the Executive Committee may be re-elected,

but not more than two-thirds of them. The Assembly shall establish the details of

the rules governing the election and possible re-election of the members of the

Executive Committee.

The Executive Committee shall: (i) prepare the draft agenda of the

Assembly; (ii) submit proposals to the Assembly respecting the draft program

and biennial budget of the Union prepared by the Director General; (iii) [deleted]

(iv) submit, with appropriate comments, to the Assembly the periodical reports

of the Director General and the yearly audit reports on the accounts; (v) in

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accordance with the decisions of the Assembly and having regard to

circumstances arising between two ordinary sessions of the Assembly, take all

necessary measures to ensure the execution of the program of the Union by the

Director General; (vi) perform such other functions as are allocated to it under

this Convention.

The Executive Committee shall meet once a year in ordinary session upon

convocation by the Director General and shall meet in extraordinary session

upon convocation by the Director General, either on his own initiative, or at the

request of its Chairman or one-fourth of its members. Each country member of

the Executive Committee shall have one vote. One-half of the members of the

Executive Committee shall constitute a quorum. Decisions shall be made by a

simple majority of the votes cast. Countries of the Union not members of the

Executive Committee shall be admitted to its meetings as observers. The

Executive Committee shall adopt its own rules of procedure.

International Bureau: Tasks in general, Director General, General information,Periodical, Information to countries, Studies and services, Participation inmeetings, Conferences of revision, Other tasks

The administrative tasks with respect to the Union shall be performed by

the International Bureau, which is a continuation of the Bureau of the Union

united with the Bureau of the Union established by the International Convention

for the Protection of Industrial Property. The Director General of the

Organization shall be the chief executive of the Union and shall represent the

Union. The International Bureau shall assemble and publish information

concerning the protection of copyright. Each country of the Union shall promptly

communicate to the International Bureau all new laws and official texts

concerning the protection of copyright.

The International Bureau shall publish a monthly periodical and shall, on

request, furnish information to any country of the Union on matters concerning

the protection of copyright. It shall conduct studies, and shall provide services,

designed to facilitate the protection of copyright. The Director General and any

staff member designated by him shall participate, without the right to vote, in all

meetings of the Assembly, the Executive Committee and any other committee of

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experts or working group. The Director General, or a staff member designated by

him, shall be ex officio secretary of these bodies.

The International Bureau shall, in accordance with the directions of the

Assembly and in cooperation with the Executive Committee, make the

preparations for the conferences of revision of the provisions of the Convention

other than articles 22 to 26. It may consult with intergovernmental and

international non-governmental organizations concerning preparations for

conferences of revision. The Director General and persons designated by him

shall take part, without the right to vote, in the discussions at these conferences.

The International Bureau shall carry out any other tasks assigned to it.

Finances: (Article 25) Budget, Coordination with other Unions, Resources,Contributions, possible extension of previous budget, Fees and charges,

Working capital fund, Advances by host Government, Auditing of accountsThe Union shall have a budget, which shall include the income and

expenses proper to the Union, its contribution to the budget of expenses common

to the Unions, and, where applicable, the sum made available to the budget of

the Conference of the Organization. The budget of the Union shall be established

with due regard to the requirements of coordination with the budgets of the

other Unions administered by the Organization.

The budget of the Union shall be financed from the following sources: (i)

contributions of the countries of the Union; (ii) fees and charges due for services

performed by the International Bureau in relation to the Union; (iii) sale of, or

royalties on, the publications of the International Bureau concerning the Union;

(iv) gifts, bequests, and subventions; (v) rents, interests, and other miscellaneous

income.

For the purpose of establishing its contribution towards the budget, each

country of the Union shall belong to a class, and shall pay its annual

contributions on the basis of a number of units fixed as follows: Class I 25;

Class II 20; Class III 15; Class IV 10; Class V 5; Class VI 3; Class VII 1.

Unless it has already done so, each country shall indicate, concurrently with

depositing its instrument of ratification or accession, the class to which it wishes

to belong. Any country may change class. If it chooses a lower class, the country

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must announce it to the Assembly at one of its ordinary sessions. Any such

change shall take effect at the beginning of the calendar year following the

session. The annual contribution of each country shall be an amount in the same

proportion to the total sum to be contributed to the annual budget of the Union

by all countries as the number of its units is to the total of the units of all

contributing countries. Contributions shall become due on the first of January of

each year. A country which is in arrears in the payment of its contributions shall

have no vote in any of the organs of the Union. If the budget is not adopted

before the beginning of a new financial period, it shall be at the same level as the

budget of the previous year, in accordance with the financial regulations.

Miscellaneous provisions

Article 26 provides for the amendment of the provision of this

Convention, whereas article 27 provides for procedure for revision. Article 28

provides for acceptance and entry into force of Act for countries of the Union by

providing for ratification, accession, possibility of excluding certain provisions,

withdrawal of exclusion etc., article 29 provides for the procedure for acceptanceand entry into force for countries outside the Union. Article 30 makes provisions

for reservation by the countries. Article 31 provides for applicability to certain

territories whereas article 32 provides for the applicability of this Act and of

earlier Acts as between countries already members of the Union and as between

a country becoming a member of the Union and other countries members of the

Union and of the Appendix in Certain Relations.

Article 33 details about the resolution of disputes. It provides for brining

the disputes before the International Court of Justice by application in

conformity with the Statute of the Court, unless parties to dispute agree on some

other method of settlement. The country bringing the dispute to the Court shall

inform the International Bureau, which in turn shall bring the matter to the

attention of the other countries of the Union.

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Article 34 provides for closing of certain earlier provisions of earlier Act

and of the protocol to the Stockholm Act, whereas article provides for duration

and denunciation of the Convention. This article makes this instrument a

perpetual instrument by specifying that the Convention shall remain in force

without limitation as to time.

Article 36 mandates the countries to undertake to adopt, in accordance

with its constitution, the measure necessary to ensure the application of this

Convention. In this concluding article 37, the instrument specifies official

languages French and English in which it will be signed. However, official

texts shall be established by the Director General, after consultation with the

interested Governments, in the Arabic, German, Italian, Portuguese and Spanish

languages and such other languages as the Assembly may designate. In case of

differences of opinion on the interpretation of the various texts, the French text

shall prevail. This Act shall remain open for signature until January 31, 1972.

Finally article 38 provides for transitory provisions.

Special Provisions Regarding Developing Countries

In the Appendix, special provision have been made for developing

countries, which are premised on the assumption that having regard to the

economic situation and social or cultural needs, developing countries are not in a

position to commit immediately to provide protection of all the rights mentioned

in the Convention. The developing countries are given choice to choose from the

faculties provided in articles II and III of the appendix. Article II deals with

limitation on right of translation and article III deals with limitation on the rightof reproduction.

However, for choosing of the options, the developing countries have to

give a notification that may be deposited with the Director General at the time of

depositing its instrument of ratification or accession. Article I of the Appendix

provides, in detail, for duration of effect of declaration, cessation of developing

country status, existing stocks of copies and declaration concerning certainterritories and limits of reciprocity.

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In article II of the appendix, the Convention provides for limitation on the

right of translation as provided in article 8 of the main text. By virtue of article II

of appendix, a developing country is entitled to substitute for exclusive right of

translation with respect to works published in printed or analogous forms of

reproduction with a system of non-exclusive and non-transferable licenses

granted by the competent authority of the country. Such a license may be

granted only for the purpose of teaching, scholarship or research.

The grant of non-exclusive and non-transferable licenses is subject to

certain conditions. For instance, a national of a developing country may obtain a

non-exclusive and non-transferable right to translate a work, after the expiration

of a period of three years or more as may be determined by the national

legislation, commencing on the date of the first publication of the work provided

no translation has been carried out and published the translation in printed or

analogous forms of reproduction, during this period, in a language in general

use in that country by the owner of the right of translation. In the case of

translations into a language which is not in general use in one or more developed

countries which are members of the Union, license may be granted after the

expiry of one year instead of three years.

No license obtainable after three years shall be granted under this article

until a further period of six months has elapsed, and no license obtainable after

one year shall be granted under this article until a further period of nine months

has elapsed from the date on which the applicant complies with the

requirements mentioned in article IV(1),7 or where the identity or the address of

the owner of the right of translation is unknown, from the date on which the

applicant sends, as provided for in article IV(2),8 copies of his application

7 Article IV (1) A license under Article II or Article III may be granted only if the applicant, in accordance

with the procedure of the country concerned, establishes either that he has requested, and has been denied,

authorization by the owner of the right to make and publish the translation or to reproduce and publish the

edition, as the case may be, or that, after due diligence on his part, he was unable to find the owner of the

right. At the same time as making the request, the applicant shall inform any national or international

information center referred to in paragraph (2).8

Article IV (2) If the owner of the right cannot be found, the applicant for a license shall send, by

registered airmail, copies of his application, submitted to the authority competent to grant the license, to the

publisher whose name appears on the work and to any national or international information center whichmay have been designated, in a notification to that effect deposited with the Director General, by the

Government of the country in which the publisher is believed to have his principal place of business.

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submitted to the authority competent to grant the license. However, if during the

said period of six or nine months, a translation in the language in respect of

which the application was made is published by the owner of the right of

translation or with his authorization, no license under this article shall be

granted. Also if the author has withdrawn from circulation all copies of his work,

no license shall be granted under this article.

If a translation of a work is published by the owner of the right of

translation or with his authorization at a price reasonably related to that

normally charged in the country for comparable works, any license granted

under this article shall terminate if such translation is in the same language and

with substantially the same content as the translation published under the

license. Any copies already made before the license terminates may continue to

be distributed until their stock is exhausted.

A license to make a translation of a work which has been published in

printed or analogous forms of reproduction may also be granted to any

broadcasting organization having its headquarters in that developing country

upon an application made to the competent authority of that country by the said

organization. Such a license may be subject to the following conditions: (i) that

the translation is made from a copy made and acquired in accordance with the

laws of the said country; (ii) the translation is only for use in broadcasts intended

exclusively for teaching or for the dissemination of the results of specialized

technical or scientific research to experts in a particular profession; (iii) the

translation is used exclusively for the purposes referred to in the Convention

through broadcasts made lawfully and intended for recipients on the territory of

the said country, including broadcasts made through the medium of sound or

visual recordings lawfully and exclusively made for the purpose of such

broadcasts; (iv) all uses made of the translation are without any commercial

purpose.

The sound or visual recordings made in pursuance of the right to

translation can also be used by any other broadcasting organization having its

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headquarters in the country whose competent authority granted the license in

question.

Under article III, developing countries may impose limitation on the right

to reproduction under article 9 of the main text, by granting non-exclusive and

non-transferable licenses to be granted by the competent authority on almost

same terms and condition on which non-exclusive and non-transferable license

for translation may be granted. Article III clauses (2) to (5) detail about the

conditions on which licenses may be granted, whereas clause (6) talks about

termination of licenses and clause (7) deals with works to which this article

applies.

Article IV of the appendix provides for procedure, indication of author

and title of work, exportation of copies, requirement of notice and compensation.

These provisions are commonly applicable to licenses under articles II and III.

Article V provides for alternative possibility for limitation of the right to

translations and article VI provides for possibilities of applying or admitting the

application of, certain provision of the appendix before becoming bound by it.

III.B Rome Convention for the Protection of Performers, Producers ofPhonograms and Broadcasting Organisations (1961)9

The Rome Convention for the Protection of Performers, Producers of

Phonograms and Broadcasting Organisations was accepted by members of the

WIPO on October 26, 1961. The agreement, for the first time extended copyright

protection to the author of a work to the creators and owners of particular,

physical manifestations of intellectual property, such as audiocassettes or DVDs.

This Convention is in response to new technologies like tape recorders

that made the reproduction of sounds and images easier and cheaper than ever

before as earlier copyright law, including international agreements like the 1886

Berne Convention, had been written to regulate the circulation of printed

materials. The Rome Convention also covered the performers and producers of

recordings under copyright.

9 http://www.wipo.int/treaties/en/ip/rome/summary_rome.html.

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The Convention defines the terms such as performers, phonogram,

producer of phonograms, publication, reproduction, broadcasting,

rebroadcasting etc.

The Convention extends protection to the performance of a performers,

such as actors, singers, musicians, dancers and other persons who perform

literary or artistic works if the performance takes place in another Contracting

State; or if the performance is incorporated in a phonogram which is protected

under article 5 of this Convention; or if the performance, not being fixed on a

phonogram, is carried by a broadcast which is protected by article 6 of this

Convention. The Convention leaves it to the discretion of the contracting states to

extend the protection to the performance of non-literary and non-artistic works.

Article 7 extends protection of preventing the broadcasting and the

communication to the public, without their consent, of their performance, except

where the performance used in the broadcasting or the public communication is

itself already a broadcast performance or is made from a fixation; fixation,

without their consent, of their unfixed performance; the reproduction, withouttheir consent, of a fixation of their performance: (i) if the original fixation itself

was made without their consent; (ii) if the reproduction is made for purposes

different from those for which the performers gave their consent; (iii) if the

original fixation was made in accordance with the provisions of article15, and the

reproduction is made for purposes different from those referred to in those

provisions.

If broadcasting was consented to by the performers, it shall be a matter for

the domestic law of the Contracting State where protection is claimed to regulate

the protection against rebroadcasting, fixation for broadcasting purposes and the

reproduction of such fixation for broadcasting purposes.

With respect to joint performers, article 8 provides that the contracting

state may specify the manner in which performers will be represented inconnection with the exercise of their rights.

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Producers of phonograms enjoy the right to authorize or prohibit the

direct or indirect reproduction of their phonograms. Phonograms are defined in

the Rome Convention as meaning any exclusively aural fixation of sounds of a

performance or of other sounds. When a phonogram published for commercial

purposes gives rise to secondary uses, such as broadcasting or communication to

the public in any form, a single equitable remuneration must be paid by the user

to the performers, or to the producers of phonograms, or to both; contracting

States are free, however, not to apply this rule or to limit its application.

Broadcasting organizations enjoy the right to authorize or prohibit certain

acts, namely: the rebroadcasting of their broadcasts; the fixation of their

broadcasts; the reproduction of such fixations; the communication to the public

of their television broadcasts if such communication is made in places accessible

to the public against payment of an entrance fee.

The minimum duration of protection under this Convention is 20 years

from the end of the year in which fixation was made in cases of phonograms or

performances incorporated therein and in case of braodcasting, the year in which

broadcast took place.

The Rome Convention allows the following exceptions in national laws to

the above-mentioned rights: private use, use of short excerpts in connection with

the reporting of current events, ephemeral fixation by a broadcasting

organization by means of its own facilities and for its own broadcasts, use solely

for the purpose of teaching or scientific research, in any other cases, except for

compulsory licenses, that would be incompatible with the Berne Convention

where the national law provides exceptions to copyright in literary and artistic

works.

Furthermore, once a performer has consented to the incorporation of his

performance in a visual or audiovisual fixation, the provisions on performers

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rights have no further application under article 19. This Convention shall be

implemented through domestice laws enacted by contracting parties. Any

dispute arising out of interpretation or application of this Convention shall be

referred to the International Court of Justice for decision, unless they agree to

another mode of settlement.

III.C World Intellectual Property Organization Copyright Treaty (WPT) 1996

The World Intellectual Property Organization Copyright Treaty,

abbreviated as the WIPO Copyright Treaty, is an international treaty for the

protection of copyright. It was adopted by the member states of the World

Intellectual Property Organisation (WIPO) in 1996. There has been a pressing

demand for additional and more effective protection by knowledge dependent

industries in the wake of advancement in the information technology.

The primary purpose of this treaty is to develop and maintain the

protection of the rights of authors in their literary and artistic works in an

effective and uniform manner. The treaty itself recognizes that the driving force

for this treaty has been the changes in social economic, cultural and technological

development, which necessitated the introduction of new rules and clarification

and interpretation of old existing rules. The treaty also took into consideration

the impact of the development and convergence of information and

communication technologies on the creation and use of literary and artistic

works.

The treaty reinforces the traditional golden rule underlying copyright

protection that it serves as incentive for literary and artistic creation and that

there is a need to maintain a balance between the rights of authors and the larger

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public interest, particularly education, research and access to information, as

reflected in the Berne Convention.

The treaty takes into consideration the new development which reflects in

its protection to computer programs as literary works in its fourth article. The

treaty also extends protection to the arrangement and selection of material in

database in addition to the traditional protection afforded to the authors of the

literary and artistic works such as control over the rental and distribution of their

copyrighted works in articles 6 to 8 which they may not have under the Berne

Convention alone.

The treaty makes one more significant advance in the protection as it

prohibits the circumvention of technological measures adopted by the authors

for the protection of works as stated in article 11 and unauthorised modification

of rights management information contained in works in article 12.

There have been a variety of criticisms of this treaty, including that it is

overbroad (for example in its prohibition of circumvention of technical

protection measures, even where such circumvention is used in the pursuit of

legal and fair use rights) and that it applies a 'one size fits all' standard to all

signatory countries despite widely differing stages of economic development

and knowledge industry.

Another lacuna in the treaty is that it did not make any reference to

copyright term extension beyond the existing terms of the Berne Convention, but

there was a degree of association. This was because the United States Council

passed both the Digital Millennium Copyright Act and Sonny Bono Copyright

Term Extension Act, which enacts copyright term extension during the same

week and used the same method using voice vote to make it less likely that the

news media would report on the bills, in addition, the European Union adopted

its own copyright term extension around the same time.

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The WIPO Copyright Treaty is implemented in United States by the

Digital Millennium Copyright Act (DMCA). The European Community have

also approved the treaty by Decision of 16 March, 2000 by the European Council.

The European Union Directive 91/250/EC creates copyright protection for

software and 96/9/EC for database protection and European Copyright

Directive 2001/29/EC prohibits devices for circumventing "technical protection

measures" such as digital rights management largely cover the subject matter of

the treaty.

III.D World Intellectual Property Organization Performances and PhonogramsTreaty (WPPT) 1996

The World Intellectual Property Organization Copyright Performances

and Phonograpms Treaty, abbreviated as the WPPT, is an international treaty for

the protection of rights of performers and producers in an effective and uniform

manner. It was adopted by the member states of the World Intellectual Property

Organisation (WIPO) in 1996. There has been a pressing demand for protection

by entertainment industry in the wake of advancement in the information

technology.

As the development and convergence of information and communication

technologies have profoundly impacted the production and use of performances

and phonograms, the need was felt to introduce new international rules. This

need was further fuelled by the changes in social economic, cultural and

technological development of the world economy.

The treaty reinforces the traditional golden rule of balancing of interests

which is the underlying theme of copyright protection between the rights of the

performers and producer of the phonograms and the larger public interest,

particularly education, research and access to information.

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The treaty in the beginning clarifies that the rules laid down in this treaty

are not in derogation with existing obligations under any other treaty and

specifically under International Convention for the Protection of Performers,

Producers of Phonograms and Broadcasting Organizations done in Rome in

1961 (also known as Rome Convention). The central idea of the treaty is

enumerated as under.

The treaty besides defining terms such as performers, phonogram,

publication, broadcasting and communication to the public lays down the basic

principle of national treatment.10 The treaty further, in chapter II lays down the

rights of performers, which are divided into two moral and economic rights.

Moral rights pertains to the right to be identified with his performance and right

to object to distortion, mutilation or other modification of his performance

prejudicial to his reputation. The economic rights of the performer is further

divided into two based on the form of performance. If the performance is

unfixed, then the performer has an exclusive right of authorizing broadcasting

and communicating to the public his unfixed performance and right of

authorizing the fixation of his unfixed performance. Once the performance is

fixed, the performer has the right to reproduce, distribute, give on rent and make

it available to the public by wire or wireless means.

The rights granted to the producers of the phonograms, inserted in

chapter III, also include the right of reproduction, distribution, give on rent and

making it available to the public by wire or wireless means. Besides these

exclusive provisions applicable to the performers and producers of the

phonograms, there are certain provisions in chapter IV which are commonly

applicable to the both performers and the producers of the phonograms. These

include the right of the performers and producers of the phonograms to a single

10

National treatment implies the treatment given to the national of the contracting country be extended tothe nationals of other contracting country with regard to the exclusive rights specifically granted in the

treaty

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equitable remuneration for the direct or indirect use of phonograms published

for commercial purposes broadcasting or for any communication to the public.

This single equitable remuneration shall be ensured by the contracting states in

their national legislations. The another right, which is commonly available to

both includes the right concerning protection against circumvention of effective

technological measures taken by the performers as well as the producers of the

phonograms. The contracting states are under obligation to provide for effective

legal remedy in this regard.

III.E Uniform Domain Name Dispute Resolution Policy (UDRP) (AsApproved by ICANN on October 24, 1999)

The purpose of adopting Uniform Domain Name Dispute Resolution

Policy11 (the "Policy") by the Internet Corporation for Assigned Names and

Numbers ("ICANN") is to resolve the disputes regarding registration and use of

an Internet domain names.

While registering a domain name, the registrant maintains and warrants

that (a) the statements made in the Registration Agreement are complete andaccurate; (b) to the best knowledge, the registration of the domain name will not

infringe upon or otherwise violate the rights of any third party; (c) the domain

name is not registered for an unlawful purpose; and (d) the domain name shall

not be used, knowingly, in violation of any applicable laws or regulations. It is

the responsibility of the registrant to determine whether that domain name

registration does not infringes or violates someone else's rights.

In case of any dispute of the nature described above, the parties

necessarily have to submit to the administrative proceeding of the corporation.

The proceedings are conducted by the dispute-resolution service provider

approved by ICANN. The service-provider, in turn, appoints a panel to decide

upon a complaint concerning domain name registration. Usually, each service

provider maintains and publishes a publicly available list of panelists and their

qualifications out of which, the complainant and respondent elects three-member11 Available at www.icann.org/udrp/udrp-rules-24oct99.htm,

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panel for deciding their dispute. If they fail to appoint three panelists, the service

provider appoints a single panelist from its list of panelists.

In such administrative proceedings relating to the registration and use of

domain name in bad faith, the complainant has to prove the presence each of the

three following elements: (i) the domain name is identical or confusingly similar

to a trademark or service mark in which the complainant has rights; and (ii)

registrant has no rights or legitimate interests in respect of the domain name; and

(iii) the domain name has been registered and is being used in bad faith.

A complaint for the administrative proceedings may be any aggrieved

person of in accordance with the Policy and Rules to any Provider approved by

ICANN. The complaint should be in hard copy and (except to the extent not

available for annexes) in electronic form and shall specify, inter alia, the domain

name(s) that is/are the subject of the complaint; Identify the Registrar(s) with

whom the domain name(s) is/are registered at the time the complaint is filed;

Specify the trademark(s) or service mark(s) on which the complaint is based and,

for each mark, describe the goods or services, if any, with which the mark is used(Complainant may also separately describe other goods and services with which

it intends, at the time the complaint is submitted, to use the mark in the future.);

Describe, in accordance with the Policy, the grounds on which the complaint is

made including, in particular, the manner in which the domain name(s) is/are

identical or confusingly similar to a trademark or service mark in which the

Complainant has rights; and (2) why the Respondent (domain-name holder)

should be considered as having no rights or legitimate interests in respect of the

domain name(s) that is/are the subject of the complaint; and (3) why the domain

name(s) should be considered as having been registered and being used in bad

faith. The complaint should also specify, in accordance with the Policy, the

remedies sought. The complaint may relate to more than one domain name,

provided that the domain names are registered by the same domain-name

holder.

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The complaint received will be scrutinized and if found adequate, will be

forwarded to the respondent, who shall respond in 20 days. The complaint along

with response, then, is sent to the panel appointed, for its decision within 14 days

and parties are notified about it. The panel shall conduct the proceedings in

accordance with the rules and no in-person hearings (including hearings by

teleconference, videoconference, and web conference), unless the Panel

determines, in its sole discretion and as an exceptional matter, that such a

hearing is necessary for deciding the complaint.

The rules also specifies the rule of evidence, wherein the circumstances, if

found present, would indicate towards the adverse inference regarding

registration and use of domain name in bad faith. (i) circumstances indicating

that the registration of domain name is acquired primarily for the purpose of

selling, renting, or otherwise transferring the domain name registration to the

complainant who is the owner of the trademark or service mark or to a

competitor of that complainant, for valuable consideration in excess of your

documented out-of-pocket costs directly related to the domain name; or (ii) the

domain name is registered in order to prevent the owner of the trademark or

service mark from reflecting the mark in a corresponding domain name,

provided the respondent have engaged in a pattern of such conduct; or (iii) the

domain name is registered primarily for the purpose of disrupting the business

of a competitor; or (iv) where the domain name is registered so as to

intentionally attempted to attract, for commercial gain, Internet users to the web

site or other on-line location, by creating a likelihood of confusion with the

complainant's mark as to the source, sponsorship, affiliation, or endorsement of

the web site or location or of a product or service on the web site or location.

On the other hand, there are certain circumstance, if found would

demonstrate the rights and legitimate interests to domain names by the

respondents. (i) before any notice of the dispute is given the respondent may

show the use of, or demonstrable preparations to use, the domain name or a

name corresponding to the domain name in connection with a bona fide offering

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of goods or services; or (ii) the respondent (as an individual, business, or other

organization) has been commonly known by the domain name, even if he has not

acquired any trademark or service mark rights; or (iii) respondent is making a

legitimate noncommercial or fair use of the domain name, without intent for

commercial gain to misleadingly divert consumers or to tarnish the trademark or

service mark at issue.

Paper-II(a)_international Legal Regime

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