Research Paper: REVAMPING COMPETITION LAW IN INDIA

competition-law

BY: RIYA MANUJA

Free competition exists inside shelters of law, custom, insurance, political approval, and carefully protected status. ~Mason Cooley

Introduction

The fight between competitors in the market leads to competition. This surely acts positively for the consumers by multiplying the number of choices for them, by the induction of new products in the market, lower prices, and high-grade quality because of competition between businesses. Eventually, competition in the market works positively for consumers by intensifying their welfare. Without any competition in the market, some firms develop chances and gain a monopoly or oligopoly. This way the sustaining competition whatsoever, is neglected and resulting in the overall loss of welfare of consumers. Competition law acts as a watchdog and scrutinizes the unfair means adopted by a firm in a dominant position and also the conduct of the enterprise. Misuse of market power, abuse of dominance or monopolizations in different ways of exploiting the high favored position in the market. Thus, the prohibition of anti-competitive agreements including vertical and horizontal agreements (also cartels), regulation of combinations consisting of amalgamations and mergers and the prohibition of abuse of dominance by enterprises form an indispensable part in enforcement agencies vide Competition Law including world agencies.

The MRTP (Monopolies and restrictive trade practices) Act, 1969 controlled monopolies and prohibited trade practices driving monopolizing enterprises. Hereinafter, the Competition Act was enacted keeping in mind the economic development of the State post-industrial revolution. From ‘command-and-control’ to an open market policy. For the prohibition of abuse of dominance, the analysis of the problem is very complex as many malpractices come into the ambit of abuse of dominance and lead to the race of monopolizing the enterprises. This includes offering rebates, predatory pricing, etc. Therefore, illegitimate practices in businesses result in the examination by the Competition Law1.
2
Objectives of Competition Commission of India

The Competition Commission of India endeavors to do the following to accomplish its objectives:

● Ensuring the markets function in such a way as for the benefit and welfare of consumers.
● For faster and inclusive growth and development of the economy, guaranteeing fair and good competition in the market.
● With an intent to effectuate the most efficient utilization of economic resources, the implementation of competition policies.
● Develop and sustain effective relations and interactions with sectoral regulators to ensure smooth alignment of sectoral regulatory laws in tandem with the competition law.
● Effectively carry out competition advocacy and spread the information on the benefits of competition among all stakeholders to establish and nurture competition practices in the Indian economy.

Drawbacks in the Appellate Stage

Under the competition law, the intention of the appellate is to keep a check on the investigative and adjudicatory wings of the Competition Commission of India. Under Section 53A of the Competition Act appeal is made against the order passed by the Competition Commission of India. All the powers of COMPAT with the National Company Law Tribunal (NCLAT). The constitutional legality of the Finance Act, 2017 was challenged as there are some pertinent questions raised concerning the merger of the COMPAT and NCLAT and effectiveness of the NCLAT to handle competition appeals2.
Under Section 53(B)(5) of the Competition Act, 2002 provides that appeal filed before the COMPAT shall be made within 6 months. Section 53 (T) of the Competition Act, 2002 allows an appeal from the decision of the appellate tribunal to be made before the Hon’ble Supreme Court of India. As according to the annual disposal rate of cases by COMPAT is just 40 % cases per year which results in timely adjudication of competition law disputes at the appellate stage3.

In today’s rapidly advancing economy in which competition disputes are also rising at a high pace. The procedure of deciding these disputes loitering due to extended timelines for the inquiries carried by the Competition Commission of India there are no provisions that provide stage wise timeline for the appellate process. The Competition Commission of India (general) regulations, 2009 and CCI (general) regulation, 2011 do not give any timeline appellate procedure and are skeletal in character4.

Sectoral Regulators

It is essential to enhance coordination between the competition agency and sectoral regulators and provide legal representation between the responsibility of the competition agency and sector regulators in the sectors where they are present for example telecommunication, electricity, and air transportation by introducing amendments in the competition legislation and sectoral regulations.
Some complicated questions are possessed due to the interface between the Competition Commission of India and sectoral specific laws. There are jurisdictional problems for the mandate of the completion laws. There have been conflicts between Competition Commission of India and various regulators due to lack of transparency in relation to the delineation of roles and responsibilities between sectoral regulators and Competition Commission of India chiefly in the areas of telecom, electricity regulation, and consumer protection.

Competition Commission of India has the primary jurisdiction to regulate matters related to competition in India, sectoral regulators have been entrusted with the duty to encourage competition in their area. It has been seen deviating outcomes and opinions due to variations between methods and approaches of regulators.

A recent case came up due to the overlap of jurisdiction is the ‘turf war’ between Competition Commission of India and TRAI (Telecom regulatory authority of India) with respect to predatory pricing issues in the telecom sectors. There have been cases like this is past due to the contradiction in views of the Competition Commission of India and sectoral regulators has surfaced.

Competition Advocacy: Role of Competition Commission of India

Competition advocacy means those activities in the economy that are carried to encourage a competitive environment. The main goal of the competition policy is the well-being of the consumers, which are the main beneficiaries of competition laws. The effectiveness of any policy and law depends upon the willingness of the people to admit that law and policy in that case advocacy plays a very crucial role in grasping the willingness and acceptability of any policy and law.

According to the Raghavan Committee: The role of CCI is not merely enforcing the Competition Law. It has to participate in the formulation of the country’s economic policies, which may adversely affect the competitive market structure, business conduct, and economic performance. Therefore Commission has to act the role of a competition advocate also to bring about Government policies that lower down the barriers to entry, promote de-regulation and trade liberalization and promote competition in the market place.

The Competition Commission of India is required to strengthen relations with the regulatory agencies and government departments in order to form policies and laws i.e. influencing demand and supply in the market for the thriving implementation of the competition advocacy. The act should provide for:

• Creating awareness and bestowing knowledge about competition issues.
• Recognizing the areas where abuse of dominance, bid-rigging are taking place.
• Protection of small enterprises against the abuse of dominance.
• Construction of healthy competition in the economy5.

Digital Economy: Competition Challenge

“There has been a rapid change in technology because of slow-paced productivity growth and large inequalities in incomes of people. The most significant goal of competition policy is to shield society from harmful competitive behavior6 .”

All of this harms the competition prevailing in the markets. The competition among firms is weakening to the core as the large firms are rising with their market power and share, the business dynamism is slowing down – all by combing concentrated markets. As and how the dominating firms rise, the technology will be diffused and so will the inequalities of income increase.

“The dynamic growth of digital markets has resulted in competition problems. These arise specifically in certain areas such as digital monopolies, tax planning, problems with patent, etc.” With the growing potential of the digital economy and dire need of intangible capital simultaneously which are ultimately lend by the dominant firms. Such very characteristics of today’s economy which is fundamentally digital, competition policy and its implementation face a lot of challenges.

Challenges of competition in Indian markets are generally revered to big technology companies and their efficiency and innovations that they stand afoot because of their unattainable capabilities but they are also vulnerable to acquisition and market power abuse. With the help of financial capital, subsidizing the goods of the users is another way of establishing market power. This is an achievable strategy by the big firms having access to a large market share and with big financial capitals. To establish a well-connected network and to attract new users, huge discounts, offers of cash-backs and various other luring schemes are designed.

Companies like Uber, Paytm and Ola have adopted strategies like these to attract and target potential customers, the humongous large number and profited a lot out of it. Where sometimes heavy losses are also occurred by the wrongful implementation of such offers or policies. “It could be useful as it would give an idea of the harm that the consumers may incur in the long run, once the company is successful in eliminating its competitors and establishing a monopoly7 .”

Big companies use their capitals as a weapon for competition making it difficult for the smaller ones to sustain. It is becoming increasingly difficult to fight any new or introductory offer by big firms to attract consumers and hence wiping out from the competition has become easier. This way tables are turned in favor of these big sharks with big financial capital and big market share, even if it does not have the most innovative product or service. But once their use targets are achieved, the smaller companies not only are smoothly turned out of the competition but also they face a hard time competing without enough market share or capital investment.

The Competition Commission of India is also aware of such scenarios being present in digital India today. “An error in labeling such strategies as anticompetitive may adversely impact the market dynamics. Competition authorities should be cautious to not label all acquisitions as anti-competitive, as sometimes these takeovers serve as an incentive for smaller firms to innovate 8.” A prima facie order was also passed by the CCI recommending a detailed investigation over the allegation that Ola had indulged into abusive market practices to gain greater market power in Bengaluru with the help of big funding from big investors. Also, in-house panels are as well established by the CCI to look into the cash back & high discount offers given by these online companies from the point of provisions of predatory pricing under Competition Act, 2002.

The fast-paced digital economy that India has become today the technical issues have also been emerging increasingly. It is understood the difficulty their qualities face to indulge and intervene to prevent any further harm to the competition. Adopting a system of settlement of cases; voluntary in nature should also be considered as a possibility by the competition authorities. This will avoid a detailed investigation and also will encourage the firms which indulge or are likely to indulge in anti-competitive practices resulting in an appreciable adverse effect on the competition in the Indian markets to modify their behavior.

Conclusion
A long-term future-oriented approach must be followed by the authorities because competition shall sustain in the market for healthy fights to emerge and also for ultimate customer benefits. This approach should necessarily focus on self-correction of digital markets and should involve external it experts to understand the working model of large businesses. The collaboration of investors from multiple firms will also be beneficial. The competition act should be restructured and should implement more strict time frames in making a detailed investigation into the allegations. There are rapidly expanding online businesses in which investigation into the violations by these businesses is very time taking as according to the existing act. The act should provide laws and should be specific about cash back offers and deep discounting that is given by online businesses.

1 The Competition Act, 2002, Act No. 12, Section 29: Procedure to investigate Combinations, Act of Parliament.

2 Madras Bar Association v. Union of Indian, (2017), 15147 and 15148, High Court of Madras (India).

Vedika Mittal, Shehnaz Ahmed, Pawam Pandya, Debanshu, Mukherjee, Joyjayanti Chatterjee, Ritwika Sharma, Key Issues in the Indian Competition Law Regime, 15-20 (2017).

4 Vedika Mittal, Shehnaz Ahmed, Pawam Pandya, Debanshu, Mukherjee, Joyjayanti Chatterjee, Ritwika Sharma, Key Issues in the Indian Competition Law Regime, 15-20 (2017).

5 Prof. (Dr.) Pallavi Gupta, Concept of Competition Advocacy and Role of CCI in India: A Practical Approach, (January 25, 2017), https://jimsgnblog.blogspot.com/2017/01/concept-of-competition-advocacy-and.html .6 Motto, M., Competition Policy: Theory and Practise, Cambridge University Press, 2004

6 Motto, M., Competition Policy: Theory and Practise, Cambridge University Press, 2004

7 Rubinfeld DL, Antitrust Enforcement in Dynamic Network Industries, The Antitrust Bulletin, Fall-Winter, 859-882 (1998).

8 Bobby Kurian and Samiksha Sharma, Let’s merge, Flipkart tells Myntra, Times of India (January 30, 2014), https://timesofindia.indiatimes.com/business/india-business/Let’s-merge-Flipkart-tells-Myntra/Article show/29582969.cms

Advertisements

Travel Checklist (Assignment)

images

BY RIYA MANUJA

Irrespective of how often you travel, a checklist for your getaway is always vital. When
your daily schedule bugs you, responsibilities burden and stress overpowers- you so need to take a break from all. Traveling is serene. Traveling in the pursuit of happiness brings so much positivity to your soul, refreshment of mindset and confidence in self. A trotter is an ardent explorer. He seeks joy from moving around and going about. Nothing is far and nothing is in reach for him. Some travel for exploration, while the rest travel for relaxation or both. Traversing domestically or internationally is only fully successful if your planning is organized.

A well-organized trip will be all about fun-filled moments and absolutely no regrets. How
much ever we feel lesser the need of the smallest things, almost that important they turn
out to be once left home, unpacked. Therefore, a checklist always proves to be so
important. The essentials and suddenly required stuff should always be carried with you on trips, so you never miss a moment!

A checklist assists you to travel smarter and in a very orderly way by simplifying the big
task of packing for tours. Any vacation requires you to be fully prepped for all the
adventures and endeavors which await your way. And so, an efficient checklist assures you and your trip to be all that you want it to be!

Luggage Load
Beginning with the choice of baggage, a travel bag-pack you would not want to weigh so
heavy. It is always advisable to have a carry-on bag for your essentials and the rest of your stuff in rolling luggage.

A carry-on bag will be lightweight, will save you the time of looking for essentials in the
luggage lot and prevent the risk of over-packing. This bag will sling onto you all
throughout and will be a go-to pack for all your frequent needs; not forgetting the waived off check-in baggage fee! Whereas, rolling luggage is full of space for your belongings.

You can stack your stuff in a neat compiled manner and saves you the burden of carrying the load as you just roll it away!

Travel Tech
While you are away for a vacation, there are bound to come some memorable moments! A camera is also useful and should be on this list. To capture and later rekindle & cherish the moments you live on that vacation, you need the camera as the captured clicks, will become your memory for life. Along with this, no one would want to forget earplugs for music, power bank/charger. The very basic but ultimately essential.

Toiletries
As important as your clothing bag is, toiletries are important too. From toothbrushes,
toothpaste, deodorant to makeup and hygiene products; all should be packed in pouches the night before you leave.

Medical Supplies
To travel with a free mindset, hassle-free and obviously with you on toes – all healthy is
what we want. It is necessary to never forget your routine medicines when you travel. In
case of their unavailability there, it is always best to carry your own supply of medication.

The medicines for unexpected discomfort like aches or nausea, fever or bad throat. It is
always best to have a little med-box of your own in case of emergencies.

Travel Documents
The trip you are on is secured and assured with your travel documents. It is smart to always keep these documents with you in a very systematic manner and even their soft copies, in case lost. These briefly include your passport/visa, tickets, your personal ID, cash and plastic money, reservations, itineraries, and their electronic copies, information of the hotels and your travel insurance and emergency contact numbers/addresses.

Whole in whole, almost everything abovementioned are revolving in our minds before we leave but a drafted checklist would certain that we are carrying all that is required for no bitter experiences. After all, with a life so hectic we all deserve a bon voyage!

Website Review (Assignment)

 

download

 

BY RIYA MANUJA

Hospet.online is like a one-stop shop for viewers. A colorful and bright website is eye-
catching! Especially with respect to the previous assignment, the search results of this
website are quite terrific as they rank first in the long list of sites. Search engine
optimization of this website has proven to be quite beneficial this way. The consolidation
of different assistive tools like news, tourism, opportunities, ads for sale/purchase and
weather report is the most likable part of this exhaustive website.
I looked through the entire site, switched to all widgets available and am of the view that
the website shows a clear vision. Nothing, available for the numerous viewers is
ambiguous. With just a few clicks, the viewers get the exactly promised sub-window which
makes the website more approachable.
Talking about the Hospet.online family which not only involves this site’s audience but
also the beautiful Facebook and Instagram handles and their followers. I went through
these pages and I sight clever networking. According to my view, a website like
Hospet.online is wholesome but its availability on GenY platforms like Facebook and
Instagram with surreal tourism pictures and most appropriate hashtags for maximum reach
is absolutely commendable!
Well, there isn’t certainly anything to dislike about the site, but I do have some suggestions
which include; adding more descriptive tourism posts on handles since they attract the most
traffic to the site. Secondly, I suggest for removal of unnecessary advertisements for buying
and selling; as they bring no good. And also the jobs’ section has opportunities but all 7
months old and not updated, which might discourage the aspirants. And lastly, the news
should be better put up as stories on IG instead of uploading them as posts, unlike
landmark judgments. I strongly feel these little changes would prove to be the icing on the
cake!

Research Paper: Patenting Artificial Intelligence- Legal Implications

legal-artificial-intelligence

Success in creating AI would be the biggest event in human history. Unfortunately, it might also be the last, unless we learn how to avoid the risks. “                                                                                                                                                                                            ~ Stephen Hawking

ABSTRACT

Artificial intelligence is the fastest spreading digital system in today’s world and is rapidly becoming part of our lives. Artificial intelligence will revolutionize the way in which we work, study, and communicate. Amalgamating Artificial Intelligence and the patent will protect and encourage human inventions and activities. The indispensable role of intellectual property is the sine qua non in the technological evolution of the nation. It brings forth challenges to the concepts of intellectual property rights to safeguard and protect rapidly growing Artificial Intelligence inventions in this tech-savvy environment.  This essay endeavors to provide insight into the reach of patents laws in Artificial Intelligence, development in patenting Artificial Intelligence and what will be legal implications of patenting Artificial Intelligence.

 

  • INTRODUCTION

INTELLECTUAL PROPERTY

It is the creative work of the human intellect. The main motivation for its protection is to promote the progress of science and technology, arts, literature, and other creative work. The economic and technological development of a country will halt if no protection is given to intellectual property rights. The contribution of intellectual property right is the sine qua non for the industrial and economic development of the nation. Intellectual property relates to pieces of information which can be incorporated intangible objects at the same time in an unlimited number of copies anywhere in the world. According to Article 2(viii) of the convention establishing the world intellectual property organization (WIPO), 1967 says that intellectual property right relates to:

  • Literary, artistic, and scientific work
  • Performance of performing artists, phonograms, and broadcasts.
  • Inventions in all fields of human endeavors.
  • Scientific discoveries.
  • Industrial designs
  • Trademark, service marks, commercial names and designation[1].

AI1

 

ARTIFICIAL INTELLIGENCE

It is the branch of computer science which is used to design intelligent computers, which intelligence like humans which includes learning, reasoning, knowledge gaining, discovering new things, scheduling, and planning and searching.  With the development of modern science, Artificial Intelligence has taken a major direction into psychological research into human behavior and thoughts and it is making computer systems more sophisticated. The niche areas of research in Artificial Intelligence are pattern recognition, information processing, and medical diagnosis. In Artificial Intelligence computer systems are created to understand the language, speech, written or spoken information to produce answers to specific problems and creating games or creating computer systems playing games more intelligently than humans. Artificial Intelligence can be used in a variety of perspectives[2]:

Firstly, the business perspective Artificial Intelligence provides very powerful tools and methods for solving problems related to business and

Secondly, the programming perspective Artificial Intelligence includes studying symbols, solving problems, searching through different techniques.

These are the most popular examples of Artificial Intelligence that are used in our day-to-day life- Apple’s Siri, Amazon’s Alexa, Tesla’s self-driving cars, Google’s Google Assistant, Artificial Intelligence cameras, security purposes, and etc[3].

PATENT

It is the right granted to an inventor to exploit his invention subject to the patent laws for a period of time. The inventor is entitled to exclude anyone from exploiting his invention. The expression patents connote a right granted to anyone who invents or discovers a new and useful process, product, machines, articles or any improvement in any existing invention. It is a right to exclude others from making, using, importing, or selling patented invention. In order to get the invention patented it should be new or novel which means it should not form part of the existing state of the art, it should be non-obvious to the people who are expert in the field in which invention is made, and there should be an inventive step which involves technological advancement as compared to the existing technology[4].

DEVELOPMENT OF PATENTING ARTIFICIAL INTELLIGENCE

Artificial Intelligence technology is developing very swiftly and is taking place in every industry all over the world. In today’s world of globalization, many technological oriented companies are developing and are using high tech equipment. The rate at which Artificial Intelligence in the world is growing and developing it is surpassing the legal aspects of Artificial Intelligence and many loopholes are taking birth in the protection of Artificial Intelligence due to complexity in legal issues. The problems like an infringement of intellectual property rights, imitation and misappropriate use of right has made companies to protect their IPR in Artificial Intelligence if it is not protected it can be copied by any other person. The innovation in which the company has spent millions on billions of money will all go in vain and the company has to bear losses. Due to Complex nature of IPR, it is essential for an inventor to be armed with the right tools to protect Artificial Intelligence.

60 years ago Artificial Intelligence was coined and the concept of Artificial Intelligence has entered into all business sectors which makes it essential for the businesses all over the world to make Artificial Intelligence protection as its first priority and make strategies to protect their IPR in Artificial Intelligence[5].

Patent offices themselves are looking to encompass Artificial Intelligence as a future for their patents. As the volume of patents and challenge of understanding not just natural language but patent language continue to develop. Artificial Intelligence will be important in helping to manage the problems and ensure a healthy future for the patents system. According to WIPO (world intellectual property organization) in the last five years, there is a huge surge in patenting of Artificial Intelligence. The number of Artificial Intelligence related patents applications worldwide surged from 18,995 to 55,660 in 2017. IBM and Microsoft are the two big companies which are holding the greatest number of patents in Artificial Intelligence. According to Francis Gurry WIPO director general, the surge in patenting means that we can expect a very significant number of new Artificial Intelligence-based products, applications, and techniques that will alter our daily lives and also shape future human interaction with the machines we created[6]’.

PATENTING ARTIFICIAL INTELLIGENCE

Artificial intelligence and Patent laws have increased interaction in today’s world. Today’s world is all technology based. The smart world we are all part of. Simplification of time-consuming complexity in procedures and in order to reduce human effort, AI has been booming overtime. The systems enabled with AI are so reformed and forward that the tasks performed by them are on the basis of their own key learnings. This creates possibilities of a new invention belonging to it.

From a technological standpoint, this is a huge development whereas there arise a lot of challenges when it comes to the legal aspect of artificial intelligence. The perspective of patent law with respect to artificial intelligence a lot of things and circumstances need to be analyzed critically.

Under U.S Patent Law, an ‘inventor’ is defined as an individual or a set of individuals who invented or discovered the subject matter of the invention. This eliminates any inference which supports the premise that legislative intention in the United States sought to include inventions or rather the possibility of inventions being made by anyone besides humans.[7]

Patents are an exclusive right over the invention and this invention cannot be a discovery. Science discoveries are already existing – they are just found later. While inventions and new and innovative. Inventions are those which happen for the first time, have not had happened before and include inventive steps for it to come into play. This could be any product or process giving away solutions to who many complex problems which are technical in nature. The one who holds an exclusive right over this invention, in particular, shall exclude and is so entitled to refrain the rest from selling, using or making the patented invention for a particular limited time period. In other words, monopolizing the existing patented invention becomes legal and hence legitimate on part of the owner of the said patent, ultimately benefitting him. AI enabled systems are well equipped to perform arithmetic functions and it also creates inventions, ordinarily is the result of the prudent application of the virtual commands of humans.

Artificial Intelligence is that invention which aims to reduce human effort and existence very smartly. Without any kind of significant human intervention, the autonomy allows artificial intelligence enabled systems to perform specific command based and limited functions without any kind of significant human intervention and interaction. Almost as smart as the human brain, these systems are as accountable as the human brain would be for that particular point of time. Therefore when it comes to increasing the functions and processing by the artificial intelligence enabled systems where the machines and programs are employed at initial stages, there arise chances of some kind of ‘discovery’ which is based on the capabilities of the machines.

The European Parliamentary Committee has noted how, in a matter of a couple of decades, AI systems could surpass human intelligence in terms of performing functions, which uncontrolled, could pose challenges as to the manner in which these AI systems control and manage their own destiny[8].”

PRE-REQUISITES OF PATENTABILITY

Here and just here lies the dilemma of ways of protecting such discoveries. For a patent to be granted, the pre-requisite criteria need to be satisfied; crucial for any and all inventions. The invention to be patented must:

  1. Possess novelty

For novelty, it becomes vital for the invention to differ from everything which exists in the prior art. At the stage of the invention itself, it becomes very important for the inventor to actually determine and analyze critically the existing prior art with a thorough perusal. It involves a lot of steps and measures to carefully looked through the already existing inventions of the same or similar nature and then finally declare his own as a novelty which is the first and foremost requirement for patentability.

His invention shall not be easily anticipated and shall be certainly creative and unique. Although an AI system will certainly have access to pre-existing art, yet it shall be truly independent in its own sense, capable of making judgments and can account for something novel.

  1. Involve inventive steps

The second step after attaining novelty the invention should have undergone inventive steps for it to be a final outcome. But in cases where it is difficult to determine the novelty itself, then chances of making innovations and inventions which are then certainly based on existing concepts makes it not easy to achieve.

  • Be capable of industrial application

The biggest obstacle faced by any artificial intelligence enabled technology is to satisfy not one but all three abovementioned steps. Sometimes these AI enabled systems struggle in obtaining all of these requirements to be patented. Usually, the AI-equipped systems and technologies are well fed with already existing objectives and aim in mines of the innovator to fulfill the desired. The technology so involved must be advanced to an extent and much equipped so as to these systems possess human-like intelligence and they are able to make judgment calls-smart enough on new situations.

A crucial factor for any invention to be granted a patent is, whether or not it can pass the patentability criteria satisfactorily. This calls for it to possess novelty, an inventive step, and be capable of industrial application[9].”

However, with countries like India removing their rigid requirement of only computer programs in conjunction with a novel hardware being eligible for a patent,40 if an AI-enabled system created a software which can be used on generic machines, it would entail practical utility, perhaps in more than one industry, which allows satisfaction of the industrial application requirement within the patentability test[10].”

CONCLUSION

The current position of AI-equipped systems and technologies under intellectual property i.e. the intangible property is somewhat problematic, wherein the recognition of work which is generated by the AI is a definite step towards the future, but actually and practically its implementation becomes an issue.

SOLUTIONS

The following might help ameliorate the same:

  1. A clear passage for AI Data Protection Legislation

The AIs today perform human-like functions in every sphere. It would not be amusing if, tomorrow they can perform functions better than humans and take their decisions themselves. To keep a track of the same, legislation governing AIs should be drafted, namely the Artificial Intelligence Data Protection Act.[11]

  1. Uniform recognition for the AI systems
  1. Removing all ambiguity with respect to the Application of IPR laws pertaining to Patentability
  1. Fixing the lacune in Criminal Liability of AI’s action

This would be a major step to prevent innocent creators from being punished, who have no control over the actions of the AI.

[1] V k Ahuja, Law relating to intellectual property right (Second edition, 2016)

[2]R. L. Adams, 10 powerful examples of Artificial Intelligence in use today, (Jan 10, 2017, 08:32 am), https://www.forbes.com/sites/robertadams/2017/01/10/10-powerful-examples-of-artificial-intelligence-in-use-today/#7e21989d420d.

[3] Artificial Intelligence, https://www.megaessays.com/viewpaper/28607.html.

[4]V k Ahuja, Law relating to intellectual property right (Second edition, 2016)

[5]Joff Wild, Artificial Intelligence and future of the patent system, (July 11, 2018), https://www.iam-media.com/law-policy/artificial-intelligence-and-future-patent-system

[6] Artem Kocharyan, Why intellectual property is essential when dealing with Artificial Intelligence, (January 13, 2018), https://medium.com/datadriveninvestor/why-intellectual-property-is-essential-when-dealing-with-artificial-intelligence-d1372a519eaa

[7] Jason Lohr, Artificial Intelligence drives new thinking on Patent rights, LIMEGREEN IP,http://www.limegreenipnews.com/2016/07/artificial-intelligence-drives-new-thinking-on-patent-rights/.

[8] Draft Report with recommendations to the Commission on Civil Law Rules on Robotics, EUROPEAN PARLIAMENT (2014-2019), http:// www. europarl.europa.eu/sides/getDoc.do?pubRef=-//EP// NON SG M L%2BCOMPARL%2BPE-582.443%2B01 %2BDOC%2 BPDF% 2BV0 //EN.

[9] The Patents Act, § 2(I), 1970 (India); The Patents Act, § 2(ja), 1970 (India); The Patents Act, § 2(ac), 1970 (India).

[10] Office Order No. 36(2017), INTELLECTUAL PROPERTY OFFICE (India), http://www.ipindia.nic.in/writereaddata/Portal/Images/pdf/Office_Order_No_36_of_2017_for_Revised__Guidelines_for_Examination_of_CRIs. pdf; BalajiSubramaniam, Patent Office Reboots CRI Guidelines Yet Again: Removes ‘novel’ Hardware Requirement, SPICYIP, https:// spicyip.com/2017/07/patent-office-reboots-cri-guidelines-yet-again-removes-novel-hardware-requirement.html

[11] Artificial Intelligence Poses a Greater Risk to IP than Humans to, TECHCRUNCH(Dec. 31, 2015), https://techcrunch.com/ 2015/12/31/artificial-intelligence-poses-a-greater-risk-to-ip-than-humans-do/

SOCIOLOGICAL SCHOOL OF JURISPRUDENCE

 

By Riya Manuja

Introduction

Law is a social phenomenon and so the Sociological School of Jurisprudence emerged by synthesizing various juristic thoughts. To study the effect of society and law on each other is the main concern of Sociological School. Law is treated as an instrument of social progress. Rules and law originated from the old customs in practice which had the social sanction. Later, came the supremacy of King and priest. King was considered as Lord and his word was God’s word. Priests were scholars and emphasized on the caste system.

Later, eventually, the welfare of society and also importance to individual interest was given to maintain the balance. The subject matter of Sociological School is society and its origin, development, and role. The study of society, its evolution, changes and dynamic nature is a primary part of Sociological ideology. The School advocates that law is a social phenomenon because it has a major impact on society. It establishes a relationship between law and society, which are directly and indirectly related.

In the words of Ehrlich, “At the present as well as at any there time, the center of gravity of legal development lies not in legislation, nor in the juristic decision, but in society itself.”

Sati, for example, has two aspects, social and legal like every other problem. Hence, to reach for the solution the relationship between law and society shall be looked upon. Sati was the ancient practice of the society, of burning the widow on her husband’s death and the Sati Pratha has now been banned under the Prevention of Sati Act, 1987 making Sati illegal.

The most important characteristic of our age is the sociological approach to study the law. The jurists which are associated with this school are not concerned not with abstract content but with the working of the law. The law is considered as a social phenomenon is the exponent of this School. A term coined by Roscoe Pound an American Jurist which is Sociological Jurisprudence as he describes the approach he takes for understanding the concept of law. He has had a philosophical approach to law and so he stressed and focused on many legal institutions and also their social effects, their practices, and doctrines.

Categorically, there are four different schools of thought in Sociology which are:

  • Symbolic Interactionism
  • Structure Functionalism
  • Feminism
  • Conflict Theory

Applied Sociology of Law

It is this term, Applied Sociology which describes the use of sociological theories and methodology by practitioners not of academic settings with the goal of producing a positive social change through active intervention.

The emergence of Sociological Jurisprudence

The following factors are responsible for the emergence of Sociological School of Jurisprudence:

  1. The analytical approach failed to meet the demands of modern society.
  2. Emphasis on the relationship between society and law.
  3. The occurrence of differences because of individual interest and social interests.
  4. The emergence of new thinkers and jurists in society making necessary contributions like Roscoe Pound, Eugen Ehrlich, Leon Duguit, Ihering

Jurists

  1. Roscoe Pound (1870-1964)

One of the most notable jurists is Roscoe Pound is an American Sociological Jurist of the 20th century. Roscoe Pound was absolutely inspired by the Kohler’s approach for the theory of social engineering and the balance maintenance of social interests. In Kohler’s theory, it is stated that all laws are emerged from civilizations and are relative. Where civilization means the social development of human beings and so the law must follow the universal idea and phenomenon to ensure complete human development. The law aims to maintain the existing values and to create new ones for the further evolution of a human character. The ideas of rights are made effective by a legal institution and so the law is that command and a way of exercising.

Roscoe Pound has incorporated Kohler’s analysis and so has inculcated in the study of his Sociological School study. Although, according to Pound jurisprudence is not so much dependent on social techniques. He strongly believes that to reach for solutions of social problems, science as a technology and engineering is a successful tool. He paid more attention to statistics and factual information than conceptual thinking.

Sociological jurisprudence neither begins nor ends with Roscoe Pound’s ideology. After Roscoe Pound’s death in 1964, his basic classification of interest was further elaborated by various following jurists and further developed a sociological approach. Professor Stone represents modern sociological jurisprudence and is considered as one of the main faults of classical sociological jurisprudence. He had although built upon Pound’s classification except for eliminating public interest category as a separate category. The sociological jurists of the future will have to undergo a lot of research and have to put in so much understanding to approach his problems as the scope for sociological jurisprudence has widened so much. It has a much wider social context now. Stone was a follower of Parsonian Social System and indicates that, in spite of its difficulties and faults, it is the type of mode to which sociological jurist must aspire. A common malaise in sociological jurisprudence is its prevalent methodology of working outwards from legal problems to the relevant social science. A framework of thought receptive of social data, allowing us to see the social system as an integrated equilibration of the multitude of operative systems of values and institution embraced within it is what is actually required. As much as Roscoe Pound was inspired by previous jurists, he was even the more original by accepting only the rights and exchanging their wrongs with his rational approach.

  • Concentrating on the functional aspects of law: Roscoe Pound was considered to be the American leader in the field of sociological jurisprudence. The viewpoint of American Sociology is found in Roscoe Pound’s writings. Concentrating more on the functional aspect of the law, some writers name his approach as a functional school. The law is an ordering of conduct so as to make the goods of existence and the means of satisfying claims go round as far as possible with the least friction and waste. According to him, the end of law should be to satisfy a maximum of wants with minimum friction.
  • Social Engineering is the task of law: the main theses of Pound is that the task of law is ‘social engineering’. He says, “For the purpose of understanding the law of today, I am content with a picture of satisfying as much of the whole body of human wants as we may with the least sacrifice. I am content to think of law as a social institution to satisfy social wants, the claims, and demands involved in the existence of civilized society- by giving effect to as much as we may with least sacrifice, so far as such wants may be satisfied or such claims given effect to buy an ordering of human conduct through politically organized society.”
  • ‘Social Engineering’ means a balance between the competing interests in society: the Jurist must work with a plan: Pound means, a balance between the competing interests in society is what is meant by ‘social engineering’. He entrusted the jurist with the commission. He should study the actual social effects of the legal institution and legal doctrines, study the means of making legal rules effective, a sociological study in preparation of law-making, the study of judicial method, a sociological legal history and the importance of reasonable and just solutions of individuals’ cases.
  • Private, public and social interests: The private interests to be protected by law are physical integrity, reputation, freedom of violation and freedom of conscience. Individual interests in domestic relations include marriage, relations of husband and wife, parents and children and claims to maintenance also extending to the public as well as social interests.
  • Interest as the main subject matter of law: In Pound’s theory, the interest and the main subject matter of law and the task of law is the satisfaction of human wants and desires. It is the duty of the law to make a valuation of interest or to make a selection of socially most valuable objectives and to secure them.
  1. Eugen Ehrlich (1862-1922)

Ehrlich was an eminent jurist of sociological school. He primarily expounded on the social basis of law where law develops and evolves from society. Law depends on social compulsion and not on State authority. According to Ehrlich, law develops from social factors. The state is merely one among many associations which possess certain characteristic means of compulsion where the law differs from many forms of social compulsion. The activities of and in societies, reported cases and daily social situations within the society are actual sources of law and not statutes. Statutes are further developed when once the law has been insourced from these above mentioned social sources. There is a ‘living law’ underlying the formal rules of the legal system and it is the task of the jurists and the judges to integrate these two types of law.

For instance, Commercial Law was embodied in statutes and cases, involves a constant attempt to try to keep up with commercial usage, for the “Centre of legal gravity lies of law not in legislation, nor in judicial decisions but in the society itself.”

Ehrlich emphasized for a scientific approach to the law relating the law more closely to the life of society. In contrast, his work has certainly some weaknesses in this domain, also there lies no clear criterion by which to distinguish a legal norm from any other social norm.

  1. Leon Duguit (1859-1928)

Leon Duguit was a French jurist. He made a substantial contribution to the sociological jurisprudence in the early twentieth century.

Leon was influenced by Auguste Compte’s theory of law where individual rights of men were denounced and subordinated them to social interest. According to Compte, the right to do his dignity is the only right a man can possess. This is the basis of Duguit’s legal theory.

Duguit was influenced by the Durkheim’s work ‘Division of Labour in Society’ which was published in 1893. A distinction was made between the two kinds of needs of men in society.

  • Firstly, the common needs of people who are only satisfied by mutual assistance.
  • Secondly, by an exchange of services, the diverse needs of individuals are satisfied.

Therefore, Duguit called ‘social solidarity’ as the division of labor which is one of the most important facts.

  1. Rudolf von Ihering (1818-1832)

Ihering was of the view of the law as a reconciler of conflicting interests but at the same time has given it certain distinctive features. Roscoe Pound was inspired by Ihreing’s ideology. For Pound, “The law is an ordering of conduct so as to make the goods of existence and the means of satisfying claims go Round as far as possible with the least friction and waste.” Pound regards these claims as interests which exist independently of the law and which are pressing for recognition and security. The law recognizes some of these making them effective within defined limits and the theory defines it as an integral part of a modern democratic society.

HISTORICAL SCHOOL OF JURISPRUDENCE

Schools-of-jurisprudence-1-770x441

By Riya Manuja

Introduction

Jurisprudence is the theory and study of law. Law has a very complex but dynamic concept and so its comprehension and apprehension vary from mind to mind.

Historical school of jurisprudence was founded by Friedrich Karl von Savigny (1779-1861). The school strongly believes that law has been generated from a long historical development of the society. Law is believed to have been originated from old social customs, traditions, conventions, principles, religious guidelines, human relationships and the economic needs of the society.

Law, as to how it is believed to be the outcome of past years and as they evolved, so has the law. It has been deeply impacted by the forces of the past. The law is historically influenced and is shaped through all these years of development and dealt with societal changes. It is based on the general consciousness of people and which had begun with the origination of the society.

The ideology of law not been made but actually founded and therefore the law should be according to the changing needs of the people as it is formulated for the people and by the people.

The emergence of the Historical School of Jurisprudence

Habits, traditions, and customs are the main sources of law according to the Historical School of Jurisprudence. The reasons for the emergence of this school are:

  • In reaction to the Natural School of Law who believed that the law has originated from some divine power.
  • In opposition to the ideology of the Analytical School of Jurisprudence with positive law as subject matter.

Jurists

Friedrich Karl von Savigny (1779-1861), Georg Friedrich Puchta (1798-1846) and Sir Henry Maine (1882-1888) were important jurists of the Historical School of Jurisprudence. These jurists gave the foundation to the Historical School and also made marked contributions.

Juristic Views

  1. Friedrich Karl von Savigny (1779-1861)

Savigny is regarded as the father of the Historical School of Jurisprudence. The legal system usually faces failure to understand its history and origin, he argued. According to Savigny, “The law is a product of times, the germ of which like the germ of State, exists in the nature of men as being made for society and which develops from this germ various forms, according to the environing influences which play upon it.

It was believed by Savigny that the law cannot be borrowed from outside. If the law is made for the people then the source of the same shall also be the consciousness of people.

The law and people are a part of society and therefore these should simultaneously grow with the development of society. He believed that the law of state grew with the strengthening of the state and law loses its essence and fades away when nationality loosens its strength in State.

  • Features of Savigny’s Theory

Friedmann summarized the features of Savigny’s theory as follows-

  1. Law is discovered or found and can’t be artificially made or invented.
  2. Law is fundamentally organic and developmental in character.

This can be found in both modern and primitive societies and communities in different forms of popular beliefs, traditions, rituals, practices, and habits which finally contribute to the law for people.

  • Law is sui generis.

It is unusual to people like its language and therefore can’t be of universal validity.

  • Criticism

Although, Savigny’s theory was a revolution and his contributions were highly appreciated by jurists all over the world. The theory was ruined by over exaggerating the very aspect and his overemphasis.

Also, it was noted that Savigny was over-occupied with the source of law and so the stream simultaneously got neglected.

  1. Georg Friedrich Puchta (1798-1846)

Georg Friedrich Puchta was a German jurist and was the most popular pupil of Savigny. He firmly believed the law to be the product of the general consciousness of people and the manifestation of their spirits. Puchta believed that law made without keeping in mind previous considerations of the past, the historic culture and old customs; law won’t evolve this way. This would rather have created an unambiguous situation than solving any problem.

After a certain evolution, the ideas of Puchta were accepted to be more logical and improved. He began from the origin of the human race and stated that men always lived in unity. This unity might not just be physical but also spiritual, focusing on the general will of people.

According to Puchta, self-interest created conflicts. He preached to keep general will over individual will for maintenance of peace and for actual evolution law.

Further, the role of the state was spoken about which is very significant. State emphasized the general will and interest of people by declining the sphere of individual interest and ultimately made a workable system.

The main concept of Puchta’s ideas was, “Neither the people nor the State alone can make and formulate laws.

  • Contribution of Puchta
  1. He gave twofold aspects of human will and the origin of the State.
  2. Despite the fact that Georg Friedrich Puchta was Savigny’s pupil but Puchta improved the views of Savigny and gave it a more logical interpretation.

 

  1. Sir Henry Maine (1882-1888)

He was the founder of the English Historical School of Law. This way, Savigny’s views, and ideology was widespread in England by Sir Henry Maine.

Maine incorporated the best ideas of Savigny and avoided the abstracts of unreal Romanticism.

Unlike Savigny, Maine favored codification of law and legislation.

  • Ideology

Maine described the development of law in four states:

  1. First Stage

Rulers and kings acted under the divine inspiration, their judgments were considered to be those of God. But actually, the King was merely an executor of judgments of God and not the law-maker.

  1. Second Stage

The Kings’ commands were converted into customary laws which prevailed in the majority class.

  • Third Stage

The custom practice flows into the hands of a minority with little knowledge. Therefore, the ruler is superseded by a minority having control over law.

  1. Fourth Stage

The law is codified and promulgated in the last stage.

Difference between Historical School and the Analytical School of Jurisprudence

S. No. Basis Historical School Analytical School
1.      

 

 

 

 

Jurists Friedrich Karl von Savigny is considered as the father of Historical School. Other important jurists are Sir Henry Maine, Georg Friedrich Puchta. Salmond was the main jurist of the Analytical School. Other supporters were Bentham, Austin, and Holland.
2.       Concept Deals with general principles governing the origin and development of law from the general consciousness of people. Deals with the analysis of the first and early principles of law.
3.       Ideology Law is self-existent. It is not made but found. The state creates the law.
4.       Factors Affecting Law rests on social pressure. Law rests on political pressure.
5.       Source Typical law is custom. Typical law is a statue.

Economic and Realist School of Jurisprudence

images

By: Riya Manuja

Introduction

Economic School of Jurisprudence

Economic School of Jurisprudence and the ideology goes back to the eighteenth century, reflecting the relationship between law and economics. The Scottish jurists claimed that a nation’s legal system and economy are intimately related. Adam Smith’s Jurisprudential theory was widely accepted considering that the theory of political economy was an integral part of it.

Economics had emerged as the progressive social science, by the end of the nineteenth century. Legal scholars and progressive economists like Roscoe Pound criticized assumptions of the United States courts struck down legislation protecting workers as violations of a constitutional standard of substantive due process.

Law as a tool to encourage economic efficiency is very useful. The practitioner of law and economics considers law as a social tool and evaluates it functionally. The legal practices are the best characteristic tools to encourage overall economic efficiency and social relations of the state. To understand this claim it is important to examine some of the basic concepts used in models of economic reasoning.

Economics and Normative Jurisprudence

The economic analysis of any situation gives better results than any other theory where analytical approaches don’t work appropriately. Law ought to be used for an aim like this, also this doesn’t entail. The arguments between economists and the advocates are of two types usually. Firstly, the concept of judicial decisions can’t be defined or rather understood by words like duty or justice. These concepts are rather complex and direct the person into more ambiguity. The economic tools are helpful in analyzing the situation in a better manner and the concept of economic efficiency is sufficient to provide for complete understanding and so the solution. Secondly, the paradigm of justice enters into a contract freely, and the law is the most efficient tool to optimize contractual agreements. If this is so, then where the law can help is in situations where transaction costs are so high as to prohibit efficient contractual relationships. Additionally, advocates of economic analysis of law claim that other jurisprudential traditions are unable to solve the problem and the analytic tools offered by law and economics have encouraged the further creation of other productive areas for interpreting and channelizing the law.

Realist School of Jurisprudence

A branch of Sociological School preferred not to be called School through the realist movement. It involves the study of law and how it works and also the social results on the corollary. Under Realist School of Jurisprudence, they emphasize less on general rules and more on what the Courts have to say. The prominent jurists are Holmes, Jerome Frank, and Gray of this thought.

Realism is the thought of Realist School of Jurisprudence which is the antithesis of idealism. A combination of sociological approaches and analytical positivism is what American Realism is all about. It considers law as it is and therefore it is positivist. The realists are interested in sociological factors of law and so, defining their sociological approaches. Realists consider judgments as law and don’t lay emphasis on a law enacted by Legislature. Holding judgment law as law with the concern of law rather than society. Judges’ holding a great role in shaping the society, forming the interpretation and finally the laws to be followed. The judgments have a psychological effect on the society and hence they play a major role in shaping the law, the Realists believe.

Jurists

  1. Justice Holmes

Justice Holmes gave the ‘Bad Man Theory’. Realism was incorporated by Justice Holmes. According to Holmes, the law is nothing but an interpretation. He says that Law is not by Mathematics. Judges make their judgments based on their knowledge and what they feel is right. He adopted the standpoint of a hypothetical ‘Bad Man’ facing trial, in order to see what in reality the Law is. His theory, which is the ‘Bad Man Theory’ developed from the same hypothetical standpoint which successfully predicts the law than other people. Justice Holmes defined the law as, “Prophecies (ability to predict) of what the court will do in fact and nothing more pretentious.

  1. Justice Gray

There were limited similarities and common factors among Realists and John Chipman Gray. He too laid emphasis on the court-oriented and for him, the law was only what the court decided. Rest, including statues, jurists’ writings, etc. are just sources of law. He said, “The law of the State or of any organized body of men is composed of the rules which the courts, that is, the judicial organs of that body, lay down for the determination of legal rights and duties.”

  1. Jerome Frank

Jerome Frank was initially a practicing lawyer and served in the Law Department of the Government for almost ten years. He was also appointed as the Judge in U.S. Circuit Court and was also the visiting professor of Law at Yale Law School. He presented a very close examination in the judicial process, how it works and evolves. He also emphasized on numerous practical illustrations. He certainly believed that certainty of law is a myth and in his thesis, he showed the law to be ambiguous in nature. According to Jerome Frank, he asserted that the judges instead discover the law and rather make it. He states that the outcome of the judgment by a judge actually depicts the history of his entire life, his learnings, discoveries, and experiences.

Jerome Frank has given the ‘Father’s Symbol Theory’ where the father provides for a secure environment for the child as the child entrusts hi with.

He emphasized on the fact that the law is based on the legal uncertainty which is inherent and is not merely a collection of statutes. Therefore, mere technical analysis is not enough to interpret the law.