Copyright Infringement

Copyright Infringement

In this new era of technological advancement, copyright infringement cannot be a topic that one can be unaware of. But the biggest concern in the present scenario is the protection of online copyrights.

In this era where the internet is given so much importance, various courts all over the world have seen cases where Internet Service Providers (ISP’s) are sued for a number of  issues relating to evasion of privacy, copyright, etc.

The concept of territoriality in the case of law applicable within a particular territory becomes a little confusing in the case of the internet, as internet travels cross borders. The Indian law does not have any law on the liability of ISP’s as are provided in the USA.

ISP LIABILITY IN INDIA:

In India, the law applicable to the infringer depends upon which part of law deals with that particular infringement. Therefore, due to the absence of such law, the Copyright Act and the Information Technology Act includes the liability of ISP’s:

Copyright act 1957

As per Section 51(a)(ii) of the Copyright Act;
“the Indian Copyright Act, the act of infringement is when, a person without any licence by the registrar or the owner of the particular copyright, does an act that is in the contravention of the conditions of a that licence or condition imposed by a competent authority under this Act permits for profit any place to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the work, unless he is unaware as and had no reason to believe that the particular communication to the general public would result in copyright infringement.”

Nowadays the Internet service providers, instruct their servers transmit and store their users data across the network. This act of ISP’s helps them to hold any third party liable in case of any infringement. In order to be liable for the infringement, it is very necessary that the ISP should benefit financially from it. The ISP’s earn even if they offer some copyrighted illegal material because of the advertisements that come along with it. Therefore, an ISP can be held liable not only when they transmit such infringed material but they are liable even if they store it.

Criminal Liability

An ISP can be held criminally liable when, he does an act of infringement or abets infringement of:
(a) the copyright in a work, or
(b) any other right conferred by this Act,

If a person does such an act than the Copyrights Act provides for the punishment to be given to him, i.e  of imprisonment which may extend to one year, or with fine, or with both.[1]
However, the Copyright Act clearly states that the ISP can be held liable only in the case he was unaware infringing material stored or being transmitted through their servers. This provides an exception to the liability.

Information Technology Act, 2000

S. 79 of the Information Technology Act states the ISP( a Network service provider in the case of this act) as an “Intermediary”, which is  defined as “ any person who on behalf of any other person receives, transmits or stores any message or provides any service with respect to any message.”[2] This section also provides that, no ISP can be held liable if he proves that he was unaware of the infringement that was caused by the third party that he had exercised all due diligence to prevent the commission of such offence.

Therefore, the ISP can get away from being liable for the copyright infringement  if it is proved under this section[3]

(a) That the ISP was unaware of the infringement,

(b)  That he took all the due diligence to prevent such infringement.

However, data has passed through an ISP’s servers or stored in them, that is likely to infringe the copyright of another, it is considered that such ISP had  to have ‘knowledge’ of such data and he has the duty to take appropriate measures to prevent such infringement. In such a case, the ISP cannot take a defence that he was unaware of such infringement.

A person is said to have done an act with due diligence when in the layman’s terms he had done that act or prevented an act by  reasonable standards expected out of a prudent person who is said to have the knowledge about such illegal activity.[4]

Drawbacks of Copyright Act

(a) The IT Act provides a wider scope to the authorities to harass ISPs in matters where their liability is the question.

(b) Which actions can be termed as done with ‘due diligence’ is not defined anywhere in the act.

(c) Who is an ISP?  The answer to this question is not given under the IT Act. Also, the IT Act does not provide for the liability of ISP. The liability of ISP is as same as for anyone who is simply a communication carrier.

Liability in the countries like USA and Europe

The arguments/defence that are taken by the ISP’s in these countries are that:

(a)That, ISPs are mere “passive carriers” and that they are nothing but a mere messenger. The court in the case of Sony v Universal Studios, was of the opinion that,

“If one provides means to accomplish an act of infringement is not sufficient to hold the person liable in the absence of any constructive knowledge of such infringement”.

(b) Every day plenty data flows in through the servers; therefore, it is impossible to check that all the data that flows through it is not an infringement. Moreover, it is impossible to achieve 100% accuracy even post-screening.[5]

It was held by the courts in the case of Religious Technology Service Centre v Netcom,  that the ISP’s are unable to exercise any influence on the data. Their duty is to offer an opportunity to publish what people say on the internet.
In the United States the law regarding online copyright infringement is dealt with in the Digital Millennium Copyright Act (DCMA) that provides the limitations the a person’s liabilities for online infringement[6]. The act protects the ISP’s from any liability in the case, he, on the receipt of an instruction from the copyright owner, had blocked the alleged infringing.

If a person or a publisher wants to limit the use of his material after the sale, he can do so with the help of Digital Rights Management (DRM).  DRM along with the other technologies restrict the user interactions with the online content and help in reducing the risk of infringement.
In the European Union, Directive on e-Commerce of 2000 provides for the liability for ISP’s. This act provides rules regarding online information requirements and transparency, commercial communications.

Both the laws of the United States and the European Union provides for the protection of both internet service providers as well as content providers. Both of these countries do not hold the ISP liable unless they are expressly notified of the alleged infringement.

Conclusion

There is an urgent need to incorporate certain laws or bring amendments in the acts because the absence of specific laws regarding the liability of the ISP in the Indian Law results in the ISP’s escaping the liability in case of infringement. In order to pave way for sound legislation with regard to ISP liability in India, it is essential to address some of the key issues mentioned hereunder;

a) There is an urgent need to provide a definition of Internet Service Provider. Unless it is done, it would always create confusion as to who can be put under the liability. It is also important to define “due diligence”
b) effective tools like DCMA can be used. Various effective measures should be adopted so that the liabilities of ISP’s are clearly identified.

c) It should be made sure that, the Information Technology Act makes it obligatory for ISPs to terminate services of subscribers who frequently violate.

Author: This blog is written by Ms.Vernita Jain, a passionate blogger & intern at  Aapka Consultant.

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LICENSE REQUIRED FOR STARTING A HOOKAH PARLOUR IN INDIA

LICENSE REQUIRED FOR STARTING A HOOKAH PARLOUR IN INDIA

Hookah Parlours have been trending a lot now-a-days with more and more people getting inclined towards the consumption and sale of Hookah. People especially youngsters todayare hooked to hookah and are always up for trying different flavors and variety. So, for someone planning to open a Hookah parlour, it can turn out to be one really profitable business.

The Supreme Court lifted the ban on Hookah in 2014. However, In order to open a Hookah Bar certain licenses and registrations are important and one needs to comply with the Cigarettes and other Tobacco products Act, 2003.For setting up a Hookah Lounge a license from the police commissioner is required which is granted on compliance with certain terms and conditions e.g.

Teenagers should not be allowed in the lounge

Permissible ingredients being usedin Hookah should not be violating anti-tobacco law.

In a restaurant which has a capacity of 30 persons or more, a separate smoking space should be provided. Smoking area should be separate from restaurant area.

The flavors being used in  the Hookahshould be got tested by the Central Tobacco Research Institute, Rajahmundry or the Shriram Institute for Industrial Research, Delhi and mustnot contain any tar or nicotine

Hookah parlor should not be in the periphery of 100 meters of any educational institution.

Being satisfied that all the necessary requirements are met with; the police commissioner may grant a license for running the Hookah bar, but, in addition to this following licenses are also required:

Trade License-Just like any other requirements, trade license is also essential for opening a hookah parlour and can be obtained from the Municipal Corporation or Health department of the state where you are planning to run it.

Shops and Establishment License-Shop & Establishment License can be obtained byapplying to the State Chief Inspector of Department of Labor and is important to protect employees’ rights and working condition.

Fire safety license- All the necessary steps need to be taken in order to ensure safety in case of fire. An NOC for the same is required by submitting an application to the Chief Fire Officer who after inspection would grant the NOC if all the conditions are fulfilled. Otherwise necessary requirements are intimated to the applicant.

Excise License- A License from the Excise Department for the Liquor License is required for which each State has its own rules and regulations.

Music license: As per the Copyright Act of 1957, a license is required for playing recorded music or videos. Phonographic Performance Limited or Indian Performing Right Society provides this license.

Food License:The food license should be obtained from the state level licensing authority for the food you plan to serve with the hookah. The food business operator license is granted for 1 year and can be renewed thereafter.

Staff license and labour registration-Labour registrations and licenses for staff are required which are dependent on number and category of staff.

Environmental measures:Environmental clearance is mandatory. An NOC from the Pollution Board of the city/state is required to ensure that the environmental and pollutions norms are not being violated in the course of business.

Registration for Service Tax- The restaurant has to be registered for service tax with Central Board of Excise and Customs.This is in regard to the services and amenities provided by the restaurant besides food.

Registration for VAT- Registration with state government is required for value added tax(VAT) on food items sold.

A good start to any business is something that cannot be compromised with. Thus, in order to run a HookahParlour without any hassles one needs to ensure that the business is being run in accordance with the Cigarettes and other Tobacco products Act, 2003 and that all the necessary licenses have been obtained, as this would help to avoid any legal trouble in future.

Author: This blog is written by Ms. Eishani Behl, a passionate blogger & intern at  Aapka Consultant.

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Mobile Recharge Portal and Business in India

Mobile Recharge Portal and Business in India

Mobile recharge can be very easy activity for those used to it, and with the volume of recharge activities taking place, a start-up with online recharge portal, can be a very profitable business, especially with a low investment. In this blog, we understand the process of starting your own mobile recharge portal. There are many startups in India like Mobikwik, PayTM etc. which offer such services. One cannot, in a fortnight, become a big successful player in the market, however, with right amount of dedication and understanding the basics, one can get success in this area.

Here are quick steps for starting mobile recharge portal.

Register your company

There is always a requirement of having a registered legal entity in the form of a company. It can be a partnership or sole proprietorship, especially if it is a small-scale start-up. However, the liability of such companies is unlimited, which acts as a risk-factor. One can also register LLP (limited liability partnership) or a private company.

Service Areas

You need to figure out what services you will be offering. Along with mobile recharge, due to rise in TV cable services, you can equally include DTH payment services, to broaden your consumer base. Equally you can increase your services, by having recharge coupons with other service providers or businesses, which can act as a marketing technique as well.

Documentation

You will be required to draft firstly, a terms and conditions policy document, which your service users can read, and agree to. This can be done with professional service provider like www.Aapkaconsultant.com help or one can draft it with a template available online, along with custom-made changes for his/her business needs and requirements.

Domain Name, Website Developer/ API Gateway

You need to have a website domain name booked for yourself. You will have to ensure that your domain name is unique, and it stands out, meaning thereby, it cannot be deceptively similar to existing companies. If it is, you can be liable for trademark infringement as well for your domain name. Therefore, choose your domain name wisely. You then need to have Application Program Interface(API) gateway.

A good web developer will be able to integrate API System or Recharge script for your website. There a host of companies which provide recharge API & other ancillary services to integrate your portal. (IWT is one of them that develops software and API integration for your recharge portal). At the same time in order to earn more you can also have an android app developed through an app-developer which is synced with your website, and is user friendly.

Data Security Standard Compliance

Payment Card Industry Data Security Standard (PCI DSS) are a set of widely accepted policies and procedures which focus on optimizing credit/debit and cash card transactions without compromising on a user’s personal information. It was launched in 2006, and a mobile recharge and e-wallet services need to comply with these standards as well.

ONLINE REGISTRATION FOR GST

Goods and Services Tax (GST) is an indirect taxation system wherein existing taxes are combined into one. It merge together most of the taxes like VAT, Service Tax, Excise Duty, Customs Duty, etc. The outset of such a system is considered to be a significant reform in the existing mechanism of indirect taxation in India. The simplicity of this system is also expected to bring about easier enforcement, implementation and administration.

The entire procedure is paperless and as such even the existing dealer will also have to apply for online registration. The last date for registration has been announced and it varies from state to state. It has thus become very vital to look at the registration procedure for GST.

Documents Required for GST Registration:

A proprietorship form of business requires PAN Card of proprietor and address proof of the individual. Whereas, LLP has to furnish PAN Card of LLP, LLP Agreement and the Partners’ names and address proof.

In case of a Private Limited Company, Incorporation certificate,PAN of Company,

Articles of Association, Memorandum of Association, Resolution signed by board members, and Identity and address proof of directors is mandatory.

Procedure for Registration:

1. Preliminary Details:The applicant needs to create a login account on the GST portal in order to start the registration procedure. The details of the preliminary registration are then verified via generating One Time Password (OTP) on the mobile number provided by the applicant.
2. Submission of Application:After the basic verification is completed, the applicant needs to fill all other details. This step comprises of fulfilling formalities and uploading required documents then submitted online through FORM GST REG-02.
3. Verification by GST Officer:After the application is submitted, it is forwarded to GST Officer for verification. The Officer examines the application and the documents attached with the same. The deficiencies in application or the approval of application by the Officer needs to be communicated within 3 working days. After getting the deficiencies, applicant will have to respond within 7 working days through FORM GST REG-04.

If there is response by the Officer either with deficiencies or approval then the application for grant of registration shall be deemed to have been approved.

4. Certificate of Registration: On approval of the application, a registration certificate is issued through a common portal in FORM GST REG-06. Such a certificate can be downloaded with ease from the common portal using their log in details.

It is to be noted that if the applicant has different branches in different states then the applicant needs separate registration for each state.

Author: This blog is written by Ms. Adila Qadir, a passionate blogger & intern at  Aapka Consultant.

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Private Limited Company v/s LLP v/s OPC

Private Limited Company v/s LLP v/s OPC

The difference between Private limited company v/s LLP v/s OPC rentiation among private limited company, limited liability partnership and one person’s company is based on the various features. Private limited company should be considered for business raising funds, requires greater compliance, with few of tax advantages. In LLP it is for non-scalable businesses with fewer compliance and tax advantages. And in OPC it is for sole entrepreneur who requires the higher compliance with minimal tax advantages and starup costs.

Those differentiations are important for the business in India. As they all are somehow interlinked with each other, but the difference among them can be made upon the various features.

Initially, the private limited company and OPC are governed by Companies Act 2013 but LLP is governed by Limited Liability Act 2008. They all are the separate legal entity, but their capital contribution is different. The capital contribution is minimum Rs. 1 lakh and for OPC too, but there is no prescribed limit for LLP.

Number of Directors

The number of Directors among private limited company is minimum 2 Directors, one has to be resident, in case of LLP, they also have 2 designated partners, one has to be resident but in OPC, there is only 1 resident director.When it comes for the audit among all these, it is compulsory in private limited company and OPC, but in case of LLP, no annual audit if turnover is less than 40 lakhs and the capital contribution is less than 25 lakhs. But they all have the limited liability.

With regard to conversion, private limited company can be converted into public liability company and LLP but LLP can’t be converted into OPC, and private limited company lastly OPC can be converted into public liability company and private limited company.

Another differentiation among all those is with the foreign ownership. In private limited company it is allowed but in LLP ownership can be allowed but with due permission from reserve bank of India and foreign investment department and similarly in OPC too.

Now another concept is with the taxation, in private limited company, LLP and OPC the tax rate is 30% on profit plus cess and surcharge. And with the annual filing in private limited company and LLP income tax return and annual statement of accounts and return is required to be filled with registrar of the company. In OPC one person is required to file its income tax return and annual statements of accounts with the registrar.

Author: This blog is written by Ms. Deepshikha Dabi, a passionate blogger & intern at  Aapka Consultant.

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Goods and Service Tax

What is GST?

Goods & Service Tax: The Constitution Amendment Bill for Goods & Service Tax (GST) has been approved by The President of India post its passage in the Parliament (Rajya Sabha on 3 August 2016 and Lok Sabha on 8 August 2016) and ratification by more than 50 percent of state legislatures. The Government of India is committed to replace all the indirect taxes levied on goods and services by the Centre and States and implement GST by April 2017.

But first let us understand what actually Goods & Service Tax is. It has been long pending issue to streamline all the different types of indirect taxes and implement a “single taxation” system. This system is called as Goods & Service Tax (GST is the abbreviated form of Goods & Services Tax). The main expectation from this system is to abolish all indirect taxes and only GST would be levied. As the name suggests, the GST will be levied both on Goods and Services. GST is a tax that we need to pay on supply of goods & services. Any person, who is providing or supplying goods and services is liable to charge GST.

Salient features of Goods & Service Tax bill:-

The proposed amendments shall subsume a number of indirect taxes which are presently being levied by the Central and State governments into GST thereby doing away with the cascading of the taxes and providing a common national market for goods and services. The aim to be achieved in bringing out such amendments is to confer simultaneous power on the parliament and the state legislatures to enact laws for levying GST concurrently on every transaction of purchase and supply of goods and services. Taking into account the federal republic nature of the country, the GST would be implemented concurrently by the central and state governments, CGST and SGST respectively.

Subsuming of various Central Indirect Taxes and levies such as Central Excise Duty, Service tax, Additional Custom and Excise duties respectively, and Central Surcharges and Cesses so far as they relate to the supply of goods and services.

Subsuming of State Value Added Tax / Sales Tax shall be done by the Goods & Service Tax bill, Entertainment tax (other than those levied by local bodies), Octroi and Entry tax, Purchase tax, Central Sales tax (levied by state and collected by states), Taxes on lottery, betting and gambling, and Luxury tax.

Compensation to the States shall be provided for the loss of revenue incurred which arose on account of the implementation of the Goods and Services Tax for a period, which may extend to five years.

Creation of Goods & Service Tax Council to be done in order to examine the issues relating to goods and services tax and make recommendations for the same to the Union and the States on parameters like rates, exemption list and threshold limits. The said Council shall function under the Chairmanship of the Union Finance Minister and will have the Union Minister of State in charge of Revenue or Finance as member, along with the Minister in-charge of Finance or Taxation or any other Minister nominated by each State Government. It is further contested that every decision of the Council shall be taken by a majority of not less than three-fourths of the weighted votes of the members present and voting in accordance with the following principles-

(a) The vote of the Central Government shall have a weightage of one-third of the total votes cast, and

(b) The votes of all the State Governments taken together shall have a weightage of two-thirds of the total votes cast in that meeting

Levy of Integrated Goods and Service tax (IGST) on inter-state transactions of goods and services to be done.

Levy of an Additional Tax on Supply of Goods, not exceeding one per cent. in the course of inter-State trade or commerce to be collected by the Government of India for a period of two years, and assigned to the States from where the supply originates.

CHALLENGES:

With regards to Tax Threshold

The threshold limit for turnover above which Goods & Service Tax would be levied will have to be strictly observed and analyzed. First of all, the threshold limit should be such that it benefits the small scale traders and service providers. The first major impact of setting higher tax threshold would naturally lead to less revenue to the government as the margin of tax base shrinks; second it may have on such small and not so developed states which have set low threshold limit under current VAT regime.

With respect to nature of taxes

There are various kind of taxes that would be part of GST such as excise duty, service tax, and different levels of taxes at State level. Remarkably, there are numerous other taxes which are union and state states based which is still out of Goods & Service Tax.

With respect to number of enactments of statutes

There are two types of laws in Goods & Service Tax, one at a center level which would be called ‘Central GST and the second one at the state level to be known as ‘State GST . This would be leading to different rates of taxes both at central and state level leading to lack of proper balance in the tax system in the country.

With respect to Rates of taxation

 Frankly speaking, the tax rate in current Goods & Service Tax is not in accordance with the state’s requirement of fund. They don’t have the power to increase their revenue if there is increase in their expenditure states.

Author: This blog is written by Ajinkya Nikam, a passionate blogger & intern at  Aapka Consultant.

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HOW TO OPEN A CURRENT BANK ACCOUNT ON COMPANY NAME

CURRENT BANK ACCOUNT ON COMPANY NAME

Companies, especially start-ups often need many different type of bank accounts. One of them is a current bank account. Nowadays, banks are offering multiple types of current account facilities. It may be premium current account, or max current account etc. depending upon your choice of bank, and the services that they provide.So today, let us understand, what are the steps to be followed for the same.

Documents required

1. Company Incorporation Certificate.

2.Memorandum of Association (MOA) and Articles of Association (AOA). They happen to be the basic or the back bone documents of a company.

3. PAN Card of Company.
4. Board Resolution by the company which would state that they want to open a current account in a particular bank, and also mention which facilities like net banking, mobile banking etc. they want to avail, along with authorizing persons who could operate that account. Similarly, it will state that if they require cards to be issued to the authorized person or not.
5. Address proof as prescribed by bank norms.
6. Know Your Customer (KYC) of the person authorized to operate the account as per the board resolution.
7. Cheque of certain amount depending upon type of account from one of the director’s accounts.

All these documents need to be self-attested. However, these are general requirements which are commonly asked by banks. Banks, may have their own individual requirements of documents. For e.g. ICICI Bank website shows, requirement of other documents also like shareholding pattern of the list of beneficial owners holding more than 25% shares etc. Therefore, one needs to check the particular bank’s requirements as well, or talk to a bank official for the same.

• Form to be filled

After these details are provided the company will fill anaccount opening form and submit all these documents with the form to the bank. One can find online the account opening form various banks or directly take it from the bank. Bank will do its own verification, after which details of your bank account will be sent to the registered address of the company.

Bank may also ask for an “entity-proof” which is primarily means anything that shows the existence of your business. Company can show various licenses or registrations certificate as well.

• Lastly, according to the bank’s rules you need to make some initial deposit which can be from 5000/- to somewhere between 20,000/-.

Author: This blog is written by  Ms. Aastha Mehta, a passionate blogger & intern at  Aapka Consultant.

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HOW TO REGISTER A BLOGGING COMPANY IN INDIA?

REGISTERING A BLOGGING COMPANY IN INDIA

If you have a blog for making money, you would register a company that runs a blog. A blogging company need to be registered first like pvt ltd company or LLP or Solo firm etc. It’s not mandatory that you have to go with the Pvt ltd Company or LLP even you can run a simple solo firm which is best legal entity for testing your ideas.You need to register your trademark for your blog, though it’s not mandatory in India but it has certain benefits.

There are 5 types of business registration available –

• Sole Proprietorship Firm: –If you are a single blogger it’s the best way to register your blogging company. A current account can be opened after service tax registration.Service tax Registration need to be done, for doing so you will be required pan card, voter id or adhar card and one business place proof like rent agreement copy or NOC from landlord.

• Partnership Firm: –If you have 2 or more than 2 founder this can be opted as a way to register the blogging company in the form of partnership firm. In this a partnership deed need to be formulated and PAN card is required as an ID proof. With the help of this a current account can be opened in banks registered under the name of the blogging company.

• Private Limited Company: –If you have 2 or more than 2 founder than along with partnership firm, this can also be opted as a way to register as a private limited company. If the aim of the company is to make a big company and its set up cost is high it’s the best way to opt.

• LLP: –It is similar to that of private limited company with less liability less set up cost. If the budget is less then this can be an appealing way to register the blogging company. For its registration a Designated Identification Number (DIN) need to be obtained along with digital signature of registered partners. Check for the availability of the name and the filing of Incorporation and Subscription document. Lastly an LLP agreement need to be formulated.

• One Person Company: –Though a One Person Entity allows a lone Entrepreneur to run a business with Limited Liability protection, an OPC (One Person Company) does have a few limitations. For instance, every OPC must nominate a nominee Director in the MOA or AOA who will become the owner of the OPC in case the promoter Director is disabled. Also, an OPC must be converted into a Private Limited Company if it crosses an annual turnover of Rs.2 crores and must file audited financial statements with the Ministry of Corporate Affairs at the end of each Financial Year. Therefore, it is important for the Entrepreneur to carefully consider the features of an OPC prior to incorporation.

Author: This blog is written by  Ms. Ankana Mukherjee, a passionate blogger & intern at  Aapka Consultant.

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