1. COMPETITION - McCarthy TÃ©trault

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The GI Act provides for registration of a Geographical Indication and the authorized user thereof who is able to bring an action based on the registration. Registration of a Geographical Indication entitles the registered proprietor and authorized users to the exclusive right to the use of the Geographical Indication in relation to the goods in respect of which Geographical Indication is registered, the right to obtain relief in respect of the infringement of the Geographical Indication. Two or more authorized users of a registered Geographical Indication have co-equal rights. The registration of Geographical Indication is valid for a period of ten years, and may be renewed thereafter for further periods of ten years. The registration of an authorized user is valid for the earlier of ten years or on the date when registration of Geographical Indication, with respect to which the authorized user is registered, expires. The GI Act prohibits assignment, transmission, licensing, pledge, mortgage, or any such other agreement with respect to a Geographical Indication. The Act also provides for infringement and passing off actions, thus recognizing the common law right in a Geographical Indication, and includes civil as well as criminal remedies. Infringement has been defined to include unfair competition. Available remedies in a civil suit include an injunction, discovery of documents, damages or accounts of profits, delivering-up of the infringing labels, and indications for destruction or erasure. For more information please contact: vaibhav@nishithdesai.com INDIA SUPREME COURT CLEARS TELECAST OF KARISHMA Originally scheduled to be launched on 12th May 2003, Rupees One Billion, mega-serial Karishma: The Miracle of Destiny (the "Karishma") was telecast on Sahara Manoranjan after a 105-day delay on 25th August 2003. Sahara Media Entertainment Ltd.'s (the "Sahara") 12th May launch of Karishma was brought to an unexpected halt just four days before its telecast. On 7th May 2003 - in a suit in which best selling romance novelist Barbara Taylor Bradford alleged copyright infringement of her book "A Woman of Substance" (© 1979) - the Single Judge Bench of the Calcutta High Court issued an ex-parte injunction order prohibiting the telecast of Karishma. The allegation of copyright infringement was based on an alleged statement by the film's producer, made during an interview, that Karishma was inspired by "A Woman of Substance." On Monday, 12th May 2003, flurries of appeals were brought. The Single Judge Bench refused Sahara's application for vacating the injunction. On the same day, on appeal by Sahara, the Division Bench of the High Court allowed the telecast of Karishma. Later that day, on Bradford's appeal, the Vacation Bench of the Supreme Court stayed the airing of Karishma by an ex-parte order. In the next hearing, the Supreme Court stayed the proceedings that had been brought before the High Court and restrained airing of Karishma until a decision was made as to Bradford's Petition. On 19th May 2003, the Supreme Court remanded the matter to the Single Judge Bench of the High Court. Thereafter, in the High Court, Sahara contended that Karishma was based on a work entitled "parajita," by Sachin Bhaumick. Furthermore, he said that, apart from the rags-to-riches theme, there was no similarity between Karishma and Bradford's novel, and that only substantial similarity of thought, sequence, and expression could be termed as infringement and not mere similarity in idea, concept, or central theme. On 30th June 2003, the Single Judge Bench vacated the injunction granted on 7th May 2003, with a direction to begin the telecast on 7th July 2003. Bradford promptly challenged this order before the Division Bench, which ruled to extend the injunction until further hearings could take place, and directed Bradford to submit a copy of her book. Sahara submitted to the Division Bench that one of its business rivals was instrumental in filing suit against Karishma. Producer Akashdeep Sabir's counsel contested that during an interview his client had stated that the plot of Karishma had been copied from Bradford's book. On 21st July 2003, after considering the evidence, the Division Bench permitted the telecast of Karishma: A Miracle Of Destiny, dismissed Bradford's appeal, and refused to grant a stay of operation on its order as prayed for by Bradford. The Division Bench observed that the interview conducted by Pammi Somal shows, by its internal evidence, that Akashdeep Sabir, had not read the book by Bradford. Rather, in the interview Sabir had admitted to borrowing only the plot and some characters. Therefore, the Division Bench observed, "Copyright infringement cannot be established on this alone. No prima facie case has been made. Infringement can be established only by comparing and showing similarity of details, events, situations, expressions of language, and imagination. Learned leading Counsel of both sides had not even read the book. How can infringement be established when even the book had not been read" (RG Anand v/s Deluxe Films, decided by the Supreme Court was relied upon). The Division Bench also observed the balance of convenience and considered Sahara's contention that they had spent over Rupees One Billion and taken Rupees One Hundred and Ten Million from advertisers. The Division Bench observed "plaintiffs will hardly suffer any loss of value of their book; if an injunction is obtained after 15/20 episodes (assuming there is going to be an infringement), the plaintiffs will get practically their full relief, and the respondents will be in almost equal problems as not starting at all. The balance of convenience heavily favors the respondents." The Division Bench further observed that Bradford's interlocutory application was premature. Bradford was ordered to pay heavy costs to Sahara. If after watching Karishma, Bradford can in fact establish infringement, it appears from the order of Division Bench that she is free to move the High Court once again to pray for an injunction. The Division Bench observed that "If 15-20 episodes are shown, then details of similarity can be established; the plaintiffs might, "have a prima facie case then; they have none now." On 21st July 2003, Bradford moved the Supreme Court challenging the High Court order. On 4th August 2003, the Supreme Court dismissed Bradford's Petition, but set aside the order imposing heavy costs and damages on her. Perhaps the tortuous destiny of Karishma might have been curtailed if the two stories had been read sooner to determine whether there was in fact a copyright infringement. In suits based on copyright infringement, rival works should be examined at the earliest possible opportunity to ascertain whether a prima facie case for infringement is established. Since copyright exists in the expression of an idea and not in the idea itself, close comparison of "expression" is necessary to ascertain whether at least a prima facie case is made out. Balance of convenience and comparative hardship are also factors to be taken into consideration while granting or refusing interim injunction. In India, where civil litigation can take approximately 10 to 12 years to be final, the fate of parties in intellectual property infringement matters is ISSUE 22 SEPTEMBER – OCTOBER 2003 8
decided at the interim stage itself, since after time passes intellectual property often loses its value. Therefore, a practice has developed in intellectual property infringement matters where detailed evidence on affidavits is led at the interim stage and interim injunction matters are heard at length, sometimes for weeks, where the merits of the matter are argued in detail with the support of case law. It may or may not come to light whether the Karishma saga was orchestrated by a rival channel, as Sahara claimed, or whether it was just the unhappy result of a misdirected but genuine attempt to bring to book pirate Bollywood script writers, but the travails of "Karishma: The Miracle of Destiny" have clearly provided a considerable amount of publicity to the work itself. For more information please contact: vaibhav@nishithdesai.com 9. MARKET ACCESS BRAZIL ANATEL ANNOUNCES CREATION OF A NEW PUBLIC SERVICE On 21st August 2003, ANATEL announced the creation of a new public service of electronic data communication, which will last until the end of 2004. ANATEL's objective is to introduce public access to the Internet. Any company that is interested in rendering such service may participate on the bid. For more information please contact: rapdecunto@pinheironeto.com.br CANADA FOREIGN OWNERSHIP IN THE COMMUNICATIONS SECTOR Recently, two House of Commons Standing Committees predicted radically different futures for foreign ownership restrictions of telecommunication and broadcasting sector companies. In an April 2003 report, entitled "Opening Canadian Communications to the World", the Standing Committee on Industry, Science and Technology noted that foreign ownership restrictions had impeded raising capital in the past decade, and that these restrictions fell hardest on newer telecom companies. The Industry Committee recommended that the Canadian government remove the minimum ownership requirements, including the requirement of Canadian control applicable to telecommunications common carriers. The Industry Committee further recommended that a special parliamentary committee undertake a comprehensive review of the governance structure of both telecommunications and broadcasting sectors in Canada. The review should, at minimum, examine both the regulatory framework governing the telecommunications and broadcasting sectors, and the approaches that the federal government could adopt to continue to facilitate broadband deployment in rural and remote communities. Lastly, the committee should also examine the federal department organization of these industries, and review the jurisdiction, role, and mandate of the Canadian Radio-television and Telecommunications Commission (the "CRTC"). By contrast, in a June 2003 study of the Canadian broadcasting industry entitled "Our Cultural Sovereignty: the Second Century of Canadian Broadcasting," the Standing Committee on Canadian Heritage recommended that existing foreign ownership limits for broadcasting and telecommunications be maintained. The Heritage Committee held the view that broadcasting is an essential preserve of Canadian culture and imagination, and that, should Canadians give up control of their cultural sovereignty, they may never get it back. The Heritage Committee proposed fundamental reforms to the structure and composition of the CRTC. It called on the government to consider that a single Communications Act be administered by a single department of communications. The new Communications Act would replace the Telecommunications Act, the Broadcasting Act, and the Canadian Radio-television and Telecommunications Act. The Committee further recommended revamping the current support programs for Canadian broadcasting; creating a new institution - a broadcasting monitor - that would report to Parliament on the health of the broadcasting system; and launching a local initiative fund to promote community and local broadcasting. The Heritage Committee also showed strong concerns with respect to cross-media ownership. For more information visit: www.parl.gc.ca/infoCom/CommitteeReport.asp or please contact: cmorgan@mtl.mccarthy.ca 10. MEDIA INDIA MIB REVISES UPLINKING GUIDELINES On 26th March 2003, the Indian Government, in its Guidelines for Uplinking of News and Current Affairs TV Channels from India (the "Guidelines"), imposed a 26% cap on the foreign direct investment (the "FDI") in television news companies desirous of uplinking from India. This was on par with the FDI cap prevalent in the print medium relating to newspapers and periodicals dealing in news and current affairs. The Government has now revised the Guidelines issued on 26th March 2003 by amending the eligibility criteria for uplinking. As per the revised Guidelines, the applicant company desirous of uplinking news and current affairs channel(s) from India is considered eligible, if it fulfils the following criteria: OWNERSHIP FDI should not exceed 26% of the Paid-up Equity of the applicant company. While calculating the 26% FDI, the foreign holding component, if any, in the equity of the Indian shareholder companies of the applicant company will be duly reckoned on pro rata basis so as to arrive at the total foreign holding in the applicant company. Equity held by the largest Indian shareholder should be at least 51% of the total equity (excluding the equity held by Public Sector Banks and Public Financial Institutions) in the New Entity. The term largest Indian shareholder includes any or a combination of the following: • in the case of an individual shareholder: (i) the individual shareholder; (ii) a relative of the shareholder within the meaning of Section 6 of the Companies Act, 1956; (iii) a company/ group of companies in which the individual shareholder/HUF to which he belongs has management and controlling interest. • in the case of an Indian company: (i) the Indian company (i.e. a company having a resident Indian or a relative/HUF, either singly or in combination holding at least 51% of the shares); (ii) a group of Indian companies under the same management and ownership control. Provided that in case of a combination of all or any of the entities ISSUE 22 SEPTEMBER – OCTOBER 2003 9
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1. COMPETITION - McCarthy TÃ©trault

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