Why Copyright Laws Vary

Whenever you write a song or a story, draw a picture, or create anything else and put it down on paper, build it, or play it, you automatically own the copyright to it, including literary, intellectual, musical, and other forms of art, software, films, photos, and more. The list of what is protected by copyright does vary from country to country, so if you are curious, check with your government’s copyright office.

Copyright gives you the ability to determine just what happens to that piece of work. Whether you want to distribute it, copy it, print it, sell it, or do anything else to it – including give the rights to it to someone else – you can, because it belongs to you for, usually, as long as you live, plus 70 years. That is why some works eventually, if the copyright is not transferred to someone else, are considered to be in the “public domain.”

“Congress shall have the Power . . . To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” – United States Constitution, Art. I, Section 8

History

In 1790, according to the United States Copyright Office, the constitution guaranteed that if a person created something, they held the rights to it, originally for 14 years. This was extended to 28 years in 1831. However, while an author, for example, can prevent others from using their exact words, they cannot prevent others from using an “idea, procedure, process, slogan, principle, or discovery.” As time went on, different provisions and time limits expanded the copyright laws.

In 1909, President Theodore Roosevelt signed the Copyright Act of 1909. This act “granted protection to works published with a valid copyright notice affixed on copies. Accordingly, unpublished works were protected by state copyright law but published works without proper notice fell into the public domain.

The copyright term remained at 28 years with a renewal term of 28 years, but the author was granted the right to terminate any transfer of his copyright between the initial and renewal term.” This act also allowed for the reproduction of music and added a provision for motion pictures in 1912 which, until that time, had to be registered as a series of photos.

Of course, as the world and its technology have changed, so copyright law has had to change. In 1998, the Digital Millennium Copyright Act limited online infringement liability for online service providers.

Up until 1989, works had to have a valid copyright notice on them in order to be protected. However, works that are published after March 1, 1989 do not need to have a valid copyright notice in order to be protected, but it’s still advisable to have one. If a work has a notice on it, a person who has infringed, cannot claim that they didn’t know.

Copyright in Practice

What does a copyright notice look like? If you have written a blog, for example, in the footer, you should say Copyright © 2006 and your name or the owner of the published works. If you have created something, whether it’s an app or a novel, you should register the copyright. If your novel is being published by a publisher, they will likely do this for you, but you should check to be sure. Registering a copyright is easy. You need to fill out the proper forms, which are available at copyright.gov or by calling the U.S. Copyright Office at 202-707-9100. It currently costs $45 to register a work. You can register a group of works together and save money if need be.

So just how do you know when to register a copyright, and why should you care? Copyright law is important for even the small creations you make. What if you make a logo or poster for your business or team? Perhaps you spent a lot of time on it and are really proud of your design. What if, after unveiling this amazing design, another team or business decided to “borrow” your logo and use it for their t-shirts?

Not only would this be upsetting to you, but wouldn’t you feel as though you should be compensated or at least credited for the time and effort you put into the logo, especially if someone else is going to use it? Of course. And without copyright law, you wouldn’t necessarily be entitled to that compensation or credit.

On the other hand, some works are available to be used by the public at large because the copyright has expired. This is called being in the “public domain.” According to Stanford University, “All works published in the United States before 1923 are in the public domain.”
This includes:

  • “Works published after 1922, but before 1978 are protected for 95 years from the date of publication. If the work was created, but not published, before 1978, the copyright lasts for the life of the author plus 70 years. However, even if the author died over 70 years ago, the copyright in an unpublished work lasts until December 31, 2002.
  • “For works published after 1977, the copyright lasts for the life of the author plus 70 years. However, if the work is a work for hire (that is, the work is done in the course of employment or has been specifically commissioned) or is published anonymously or under a pseudonym, the copyright lasts between 95 and 120 years, depending on the date the work is published.
  • “Lastly, if the work was published between 1923 and 1963, you must check with the U.S. Copyright Office to see whether the copyright was properly renewed. If the author failed to renew the copyright, the work has fallen into the public domain and you may use it.”

If you are interested in a certain work, the renewal records for works since 1950 are available online at copyright.gov. The copyright office can conduct renewal searches for you, as well, for a fee.

Fair Use

There are provisions for “fair use,” where permission is not necessarily required from the author or creator of a work. In these cases, it has been determined by Congress that there are times when the need for the public to be informed is more important than the need of a creator to be compensated. In general, if you want to use someone else’s work in a small, non-competitive way to the benefit of the public, you are probably fine. Courts use these criteria, generally, to determine fair use:

  1. “Is it a competitive use? (In other words, if the use potentially affects the sales of the copied material, it’s usually not fair.)
  2. “How much material was taken compared to the entire work of which the material was a part? (The more someone takes, the less likely it is that the use is fair.)
  3. “How was the material used? Is it a transformative use? (If the material was used to help create something new it is more likely to be considered a fair use than if it is merely copied verbatim into another work. Criticism, comment, news reporting, research, scholarship and non-profit educational uses are most likely to be judged fair uses. Uses motivated primarily by a desire for a commercial gain are less likely to be fair use).”

Being sure to quote and credit an author when using their work to benefit another work is also necessary. When in doubt, if possible, track down the author and ask.

International

International copyrights are also a growing consideration in a world advancing technologically. The U.S. Office of Policy and International Affairs (PIA) attorneys have “substantial expertise in foreign copyright issues and international copyright treaty obligations.” They work on many copyright issues with the World Intellectual Property Organization (WIPO) and in other areas. These attorneys serve on “U.S. government delegations for bilateral and regional trade agreements and copyright treaty negotiations between the United States and other countries.”

A number of different organizations work to solidify copyright law throughout the world. The World Intellectual Property Organization is a global organization of the United States with 189 member states and self-funded. The International Federation of Reproduction Rights Organisations (IFRRO) and the European Copyright Commission all work to protect international copyright laws. The Berne Convention is a treaty often referred to in international copyright. It was originally accepted in 1886 and mandates that all countries that sign treat the works of authors and creators in other countries at least as well as they treat their own. This treaty has been amended to include varying types of works over the years as well. The full text of the Berne Convention Treaty of 1971 is available online.

Summary

Copyright law may seem complex and even a little intimidating, but really, for the creator, it’s pretty simple. Register your work and you are protected. Even if you don’t register, you’re probably still protected. If in doubt about your own work or using the work of someone else, consult an attorney.



About the author

picture1Houston defense lawyer Greg Tsioros provides legal advice and aggressive representation for clients charged with misdemeanors and felonies at both the state and federal level. Read more about The Law Office of Greg Tsioros at www.txcrimdefense.com.

Constitutional Aspect of Intellectual Property Rights in India

This article has been written by Deepseng Shyam. Deepseng is currently a student in NLU Assam.

Intellectual Property and India has a good long history dating back to the ancient years of Indus Valley Civilization. Evidences show that in the Ancient Era, especially during the Indus Valley Civilization era, activities of town planning, entertainment industries, musical industry and others were highly prevailing and also trademarks have been also used to differentiate the products of the producers from one from another. If we take a look at the present scenario, Intellectual Property like trademarks, are used mainly by every market competitors to differentiate ones product from another. So it is safe to say that the idea to protect one’s product or service from another has been prevailing since the ancient times in India. Intellectual Property Law was first brought to mainstream in India by the British Empire by implementing the British Patent Act, 1852 when an applicant named George A. DePennings made the first application for a patent in India in the year of 1856, which subsequently gave effect in the making of the Act VI of 1856[1]. The recognition of Intellectual Property as a property by the Indian Constitution is vague and unambiguous. The Constitution of India does not openly declare an Intellectual Property as a property but at the same time it also does not reject the same.

The Indian constitution in its preamble permits mixed economy system and recognises the economic liberty as one of the most important liberty. This has been ensured through property system. If the term “property” used in the Indian Constitution is analysed it may mean any tangible property but it has a wider concept. Though, it absolutely includes intellectual property but indirectly. There was a time when “Right to Property” was a fundamental right enshrined in the Indian Constitution under Article 19 (f) but later it was substituted through the 44th amendment. However the substitution of Article 19 (f) didn’t mean the end of “Right to Property”, the insertion of another Article i.e. Article 300A through the 44th Amendment, changed it to a Constitutional right from fundamental right and due to this change any legislation violating the constitutional “Right to Property” could now be challenged only in High Courts and not directly in the Supreme Court. However, Intellectual Property as a form of property can be put under Article 300A dealing with property and be entitled to a legal right. Unlike the Indian Constitution, the United States Constitution specifically protects the Intellectual Property (Article 1(8) of the U.S. Constitutions which provides “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries”). However, there is no such Intellectual Property clause in the Indian Constitution. While this means that Intellectual Property does not have special Constitutional status, it also means that there are no Constitutional restrictions on the power to make laws on Intellectual Property. Article 300A of the Indian Constitution provides constitutional safeguards against unlawful deprivation of property it is Article 253 that plays an important role in the context of Intellectual Property Rights as it mandates the recognition of the international aspect of laws, legislations, and agreements and empowers the Indian parliament to enforce the international treaties through law making process. Certain provision in Article 372 also validates the pre-constitutional law subject to certain condition laid down in the provisions. For instance: Article 372 (1) states that: “Nothingwithstanding the repeal……………all the laws in force in the territory of India immediately before the commencement of this constitution shall continue in force therein until altered or repealed or amended by a competent legislature or other competent authority”.

Thus due to the presence of these Articles it became possible for the pre-constitutional Intellectual Property Rights laws to be in force in India and the adoption of various International treaties on Intellectual Property laws by the Indian legislation. For example, the repealing of 1911 Patent Act and the passage of new Patent Act, 1970 was due to Article 372 (1) of the Indian Constitution which authorizes the legislature or any competent body to repeal, alter or amend the pre-constitutional laws. Also, majority of the present Intellectual Property laws are influenced by the international laws, such as the present patent laws is the result of various international instrument like Budapest treaty, TRIPS agreement, UN convention on Biodiversity and others.

Article 31A protected the legislations providing for acquisition of estate or any right therein or their modification on the ground that it took away or abridged any of the rights conferred by Part III of the Constitution. Article 31B restricted the scope for challenge on the plea of violation of fundamental rights. Intellectual Property, in its literal sense, means the things manifested from the exercise of the human brain, a product emerging out of the Intellectual labour of a human being. The two chief items are the writings of authors, and inventions made by the inventors. In its broadest sense, the term “Intellectual Property” includes ideas, concepts know-how, and other creative abstractions, and also, the literary, artistic, or mechanical expressions that embody such abstractions.

The basic difference between this form of property and other forms is that, in Intellectual Property the focus is on the produce of the mind, and not on the product itself. For example, in literary property (copy right) it is not the book which is termed property, but the intellectual creation, which comprises ideas, conceptions, sentiments, thought etc, fixed in a particular form that is considered property for protection. Traditionally only a few items were included in the category of Intellectual Property. At present, generally copyright, designs, patents, and trade mark are classified as Intellectual Property. But by the development of arts, science and technology, many new items have been included in this category.

Further, the mention of Intellectual Property system in the Entries of the Indian Constitutional further provide us with clues that Intellectual Property is indeed recognized by the Indian Constitution. Entry 12, 13, 14 has been rightly included in the List 1 of the 7th Schedule of the Indian Constitution. Entry 49 of List I happens to be the specific one which has been totally and exclusively devoted to intellectual property system. Entry 49 recognizes only patents designs, copyright, trademarks and others. However, it does not recognize the concept of traditional knowledge, biodiversity, geographical indications and others but these categories of intellectual property rights can be included within the existing one. If we look into entry 97 of List I which read as follows “any other matter not enumerated in List II or List III including any tax not mentioned in either of those Lists” and Article 248 reads as “parliament has exclusive power to make any law with respect to any matter not enumerated in the concurrent List or State List”. Thus, it is safe to assume that Traditional knowledge can be included among other Intellectual Properties and are recognized by the Indian Constitution as Intellectual property.

Conclusion

The Constitution of India provides the necessary safeguard to protect the right to property in general and the agricultural property in particular[2].  For example, The Protection of Plant Varieties and Farmers Right Act, 2001 is framed to make available a number of special safeguard measures to protect and promote the interests of the farmers in order to encourage the accelerated growth of the agricultural sector which will ultimately result into the overall growth of the Indian economy. Also the Biodiversity Act, 2002 is framed to provide safeguards to various biological resources like “plants, animals and micro-organisms and their genetic material and by-products (excluding value added products) with actual or potential use or value, but not human genetic material against being misused and other unfair commercial or non-commercial activities. In general it is enacted to protect against bio-piracy[3]. A case of such bio-piracy occurred when the US Patent Office granted the patent (Patent No. 5, 401 and 504) for turmeric to two expatriate Indians at University of Mississippi Medical Centre in 1995 which was subsequently challenged by the Indian Council for Scientific and Industrial Research (CSIR) on the ground of “prior art” or “existing public knowledge”[4]. Although, the CSIR won their battle, this incident shows how traditional knowledge is vulnerable to bio-piracy and thus the need to protect it has grown increasingly.

[1] History of Indian Patent System, available on the official website of Intellectual Property India.  Link: http://www.ipindia.nic.in/history-of-indian-patent-system.htm

[2] Article 300A and Article 31A.

[3] Section 2 of Bio-Diversity Act, 2002.

[4] Daima, Dinesh. “Class on Trade Mark Law and Traditional Knowledge”. National Law University, Assam, Guwahati. 5th November, 2016. Class Lecture.



The December book bucket

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Outer Space – The scope of Laws

This article has been written by Eashwari Nair. Eashwari is currently a student in Symbiosis Law School, Hyderabad.

1. THE CONCEPT OF SPACE LAW

The robust development of the space industry has called upon the domain of law in order to regulate and maintain order within the field.  It has been seen so far that every domain where law has played a role there has been a specific vicinity to which it applies, but it is seen that this very domain doesn’t seem to.  The fact that the jurisprudence is in question can be understood by the fact that there has been no uniform acceptance on the definition of “outer space”. Thereby the jurisprudence of space activities seems to be highly challenging.

This field of law seems to be highly intriguing and triggers several questions since there is no boundary been put with respect to the subject itself.

2. A BRIEF UNDERSTANDING OF THE ORIGIN OF SPACE LAWS.

This very part of law opened up when the first artificial satellite in 1957 built by the Soviet Union Sputnik was launched. This event directed the United nations to create an organisation that deals with the sector of space age. The department in charge also referred to as The Committee on peaceful useful uses of outer space.(COPUOS).  With respect to the creation of the mentioned organisation , the 103  member nations [1] had negotiated 5 major agreements or treaties that serve as fundamentals when it comes to rules and regulations in the atmosphere of international law spoken in relation to space law. The 5 major treaties that were formulated are listed as follows:-

  1. The outer space treaty
  2. The Rescue Agreement
  3. The liability Convention
  4. The registration Convention
  5. The moon treaty.

The above listed agreements were formulated keeping the following parameters in mind.

  1. The non – appropriation of outer space by any country
  2. Arms control
  3. Freedom of exploration
  4. Liability for damage caused by space objects
  5. Safety and Rescue of spacecrafts and astronauts
  6. Harmful interference with space activities and the effect caused to the environment.

Various countries ever since the emergence of the first artificial satellite have taken the task of exploration of this other dimension of the world. This trend of exploration has lead to a new field of work and now has called upon the gods of law to help develop this field in a regulated manner.

3. INDIA AND SPACE LAW

Not many countries have seen to be actively taking part in this expensive field of exploration, and the nations that do have significantly contributed to our understanding of this fascinating concept of what lies beyond planet earth. Since the enthusiastic participation is limited, few countries such as Russia , Japan and The United States have taken initiative in the creation of laws and legislations that help the industry to function smoothly.

Where does India stand in all of this? The Indian Space Research Organisation (ISRO) has done a phenomenal job in making India a signatory among one of the elite space-faring nations. Especially the year 2016 has seen this organisation dominating the channels of news when it came to science and space.  And in order to not just keep this industry thriving but to encourage it as well, certain guidelines must be set in the form of a legislation in order to also open up the possibility of private entities entering into the field of space. Like the other well-to-do nations in this field regulated and governed by their respective national laws, India as a nation must formulate, codify and implement a legislation that will encourage this industry. [2]

As  a nation that seems to be the Emerging global space power, there is heavy emphasis on the codification of laws that guide the nation to continue to make strides in this field. Our codification should include but not be restricted to the following aspects:-

  1. The aspect of launch services( to introduce private companies and regulate them)
  2. Satellite Communications and broadcasting
  3. Analysis of observation and the distribution of this very observation.
  4. IPR regime and the transfer of technology
  5. The aspect of safety of space activity
  6. Liability and Responsibility
  7. The concept of Insurance
  8. There is also scope for the possibility of space tourism in the future.

We as a nation when it comes to space, satellites etc legally speaking currently base the regulations fundamentally on the principles put forth in the constitution of India. Furthermore it is seen that space and the inventions that the curiosity with respect to space ignites holds strategic significance from the eyes of the military. [3]

Also as students of law ,  we should take the initiative to explore and understand this field that has been devoid of active participation.

[1] The numerical estimate is to the number of member countries is subjected to correction.

[2] It is seen that national interests always outweigh the international interests especially with respect to international laws.

International laws with respect to space are seen to be very ineffective, since the issues addressed are not only few in number , but lacks variety of coverage.

[3] There could be the possibility of a space war in the future ( though this may seem to be a derivative of fiction)



The December book bucket

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Legal backing to rent a womb in India

This article has been written by Miracline Paul SusiMiracline Paul Susi.T is a 4th-year law student at School of Law, SASTRA University.

Surrogacy is a practice by which surrogate mother becomes pregnant and gives birth to a baby in order to give it to someone who cannot have children. While countries including Italy, Spain, Germany and France prohibit all forms of surrogacy, countries like Australia, the United Kingdom and Denmark, allow only altruistic surrogacy. Commercial gestational surrogacy, in which a woman who has no genetic link is paid to have a baby, is a growing trend in countries like India, Russia, Thailand, and Ukraine. After the first surrogate delivery in India in June 1994, India has steadily emerged as an international destination for commercial surrogacy. A study backed by the United Nations in July 2012 estimated the business at more than $400 million a year, with over 3,000 fertility clinics across India[1]. Though the ethical issues started at an early stage, the legal complications with regards to commercial surrogacy came only in the year 2008. A Japanese couple contracted an Indian woman to serve as a surrogate. But before the woman could deliver the child, the couple got divorced. The genetic father wanted the child’s custody, but Indian law barred single men from it, and Japanese law didn’t recognize surrogacy. In this landmark case the Supreme Court held that commercial surrogacy was permissible in India and the baby was ultimately granted a visa[2]. Surrogacy (Regulation) Bill 2016 proposed by the Health Ministry, banning commercial surrogacy came as a solution to this problem. The bill was cleared by the Union Cabinet on the 24th of August 2016 and is set to be introduced in the Parliament soon.

The draft bill provides for surrogacy as an option to parents who have been married for at least five years, either one of couple must have proven infertility. The age limit for the married couple ranges from 23-50 for female and 26-55 for male. Couples who already have biological or adopted children cannot commission a surrogate child. The bill clarifies the legal position of a child born of surrogacy by ensuring all legal rights as a citizen for the child. The bill bans egg donation. The surrogate mother has to be a married woman who herself has borne a child and is neither a non-resident Indian (NRI) nor a foreigner. Women can be surrogates only once and a married couple can only have one surrogate child. The couple should employ an “altruistic relative”, i.e. the surrogate mother should be a relative who is sympathetic to the situation. The bill restricts overseas Indians, foreigners, unmarried couples, homosexuals, and live-in couples from entering into a surrogacy arrangement.

Although the bill was passed with the intention of regulating the surrogacy, some of the clauses had outraged both the medical community and the general public. By allowing surrogacy for select classes of citizens the bill would violate citizens Fundamental Rights as laid down in Article 14 of the Indian Constitution. The idea of “altruistic surrogacy” expressed in the Bill greatly limits both potential surrogate mothers as well as couples wanting children.

The bill has ignored to discuss the issue of consent in detail. If a woman willingly consents to being a surrogate mother, is assured of a safe delivery; and the baby is assured of a safe home, why should she be limited to only one surrogacy? After the surrogacy industry boomed, a lot of women were dependent on the same. The issue here seems to be that the woman is “exploited” for her body. Surrogacy laws should be set out in such a way that full consent of the woman in question is assured. Here, instead of regulating the ways and policies in which a woman’s exploitation is prevented, what the bill has done is eliminate the idea entirely. The ban on egg donation in order to curb child trafficking and illegal surrogacy racket is only a blanket.  This situation cannot be resolved without censoring the entire industry[3].

Gay rights are still an evolving issue in India. While the Supreme Court is sitting on a review petition on Section 377 of the Indian Penal Code, pertaining to the status of gay rights, no clear legal stand on the issue has emerged. At this point the explicit stating of the ban of surrogacy to homosexual couples clearly shows the uncertainty of gay couple status in India.

The main issue is the question of disallowing commercial surrogacy and restricting foreigners from availing themselves of surrogacy in India. Since the inception of commercial surrogacy, a number of incidents have sparked unpleasant legal questions surrounding commercial surrogacy involving foreigners. In 2012, for example, an Australian couple who had twins by surrogacy arbitrarily rejected one while selecting the other. Such issues reveal the complexities that surround commercial surrogacy. There is need for discussing such complexities in the bill.

The draft Surrogate (Regulation) Bill seeks to comprehensively address the issue of surrogacy in India. This is indeed a step in the right direction. But the aim of bill will reach its fulfillment only when the above mentioned controversies are addressed.

[1] The Growth Of Surrogacy Industry In India And The Issues Surrounding It, 3rd October 2015, viewed at https://thelogicalindian.com/story-feed/awareness/the-growth-of-surrogacy-industry-in-india-and-the-issues-surrounding-it/

[2] Baby Manji Yamada vs Union Of India & Anr (2008) 13 SCC 518

[3] Malavika Ravi , A Critical Analysis Of The Surrogacy Regulation Bill 2016, 31 August 2016, viewed at http://feminisminindia.com/2016/08/31/critical-analysis-surrogacy-regulation-bill-2016/



The December book bucket

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Laws for senior citizen in India

This article has been written by Piyush Bajaj. Piyush is currently a BCom LLB student at Amity Law School, Noida.

Our seniors are our responsibility. Intergenerational equity is a principle of natural justice. A generation which neglects its elders and aged commits crime and shall be mate with same fate in their elder years. Ageing is a natural process, which inevitably occurs in human life cycle. It brings with a host of challenges in the life of the elderly, which are mostly caused by the changes in their body, mind, thought process. Ageing refers to a decline in the functional capacity of the organs of the human body, which occurs mostly due to physiological transformation. The senior citizens constitute a precious reservoir of such human resource as is gifted with knowledge of various sorts, varied experiences and deep insights. May be they have formally retired, yet an overwhelming majority of them are physically and mentally capable of contributing to the well being of the society. Hence, given an appropriate opportunity, they are in a position to make significant contribution to the socioeconomic development of their nation.

Problems of the aged as follows:

(i) Economic problems include such problems as loss of employment, income deficiency and economic insecurity.

(ii) Physical and physiological problems, include health and medical problems, nutritional deficiency, and the problem of adequate housing etc.

(iii) Psychosocial problem which cover problems related with their psychological and social maladjustment as well as the problem of elder abuse etc.

National Efforts:

(I) Constitutional Protection:

Art. 41: Right to work, to education and to public assistance in certain cases: The State shall, within the limits of economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want.

Art. 46: Promotion of educational and economic interests of ……. and other weaker sections : The State shall promote with special care the educational and economic interests of the weaker sections of the people…..and shall protect them from social injustice and all forms of exploitation.

However, these provision are included in the Chapter IV i.e., Directive Principles of the Indian Constitution. The Directive Principles, as stated in Article 37, are not enforceable by any court of law. But Directive Principles impose positive obligations on the state, i.e., what it should do. The Directive Principles have been declared to be fundamental in the governance of the country and the state has been placed under an obligation to apply them in making laws. The courts however cannot enforce a Directive Principle as it does not create any justiciable right in favour of any individual. It is most unfortunate that state has not made even a single Act which are directly related to the elderly persons.

(II) Legal Protections:

Under Personal Laws:

The moral duty to maintain parents is recognized by all people. However, so far as law is concerned, the position and extent of such liability varies from community to community.

(I) Hindus Laws:

Amongst the Hindus, the obligation of sons to maintain their aged parents, who were not able to maintain themselves out of their own earning and property, was recognized even in early texts. And this obligation was not dependent upon, or in any way qualified, by a reference to the possession of family property. It was a personal legal obligation enforceable by the sovereign or the state. The statutory provision for maintenance of parents under Hindu personal law is contained in Sec 20 of the Hindu Adoption and Maintenance Act, 1956. This Act is the first personal law statute in India, which imposes an obligation on the children to maintain their parents. As is evident from the wording of the section, the obligation to maintain parents is not confined to sons only, and daughters also have an equal duty towards parents. It is important to note that only those parents who are financially unable to maintain themselves from any source, are entitled to seek maintenance under this Act.

(II) Muslim Law:

Children have a duty to maintain their aged parents even under the Muslim law.

(a) Children in easy circumstances are bound to maintain their poor parents, although the latter may be able to earn something for themselves.

(b) A son though in strained circumstances is bound to maintain his mother, if the mother is poor, though she may not be infirm.

(c) A son, who though poor, is earning something, is bound to support his father who earns nothing.

 (III) Christian and Parsi Law:

The Christians and Parsis have no personal laws providing for maintenance for the parents. Parents who wish to seek maintenance have to apply under provisions of the Criminal Procedure Code.

(III) Under the Code of Criminal Procedure:

Prior to 1973, there was no provision for maintenance of parents under the code. The Law Commission, however, was not in favour of making such provision.

According to its report:

The Cr.P.C is not the proper place for such a provision. There will be considerably difficulty in the amount of maintenance awarded to parents apportioning amongst the children in a summary proceeding of this type. It is desirable to leave this matter for adjudication by civil courts.

The provision, however, was introduced for the first time in Sec. 125 of the Code of Criminal Procedure in 1973. It is also essential that the parent establishes that the other party has sufficient means and has neglected or refused to maintain his, i.e., the parent, who is unable to maintain himself. It is important to note that Cr.P.C 1973, is a secular law and governs persons belonging to all religions and communities. Daughters, including married daughters, also have a duty to maintain their parents.

(IV) Governmental Protections:

  1. The Government of India approved the National Policy for Older Persons on January 13, 1999 in order to accelerate welfare measures and empowering the elderly in ways beneficial for them. This policy included the following major steps :

(i) Setting up of a pension fund for ensuring security for those persons who have been serving in the unorganized sector,

(ii) Construction of old age homes and day care centres’ for every 34 districts,

(iii) Establishment of resource centres’ and reemployment bureaus for people above 60 years,

(iv) Concessional rail/air fares for travel within and between cities, i.e.,30% discount in train and 50% in Indian Airlines.

(v) Enacting legislation for ensuring compulsory geriatric care in all the public hospitals.

Conclusions:

It may be conclude by saying that the problem of the elderly must be addressed to urgently and with utmost care. There is urgent need to amend the Constitution for the special provision to protection of aged person and bring it in the periphery of fundamental right. With the degeneration of joint family system, dislocation of familiar bonds and loss of respect for the aged person, the family in modern times should not be thought to be a secure place for them. Thus, it should be the Constitutional duty of the State to make an Act for the welfare and extra protection of the senior citizen including palliative care.



The December book bucket

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The Trolley Problem

This article has been written by Raina Mahapatra. Raina is currently pursuing her undergraduate course from Symbiosis Law School, Pune.

While reading an article last night, I came across a very specific concept that seemed particularly interesting. Let me guide you along my ‘train of thought’ that originated hence.

It’s a lovely day out, and you decide to go for a walk along the trolley tracks that crisscross your town. As you walk, you hear a trolley behind you, and you step away from the tracks. But as the trolley gets closer, you hear the sounds of panic – the five people on board are shouting for help. The trolley’s brakes have gone out, and it’s gathering speed.

You find that you just happen to be standing next to a side track that veers into a sand pit, potentially providing safety for the trolley’s five passengers. All you have to do is pull a hand lever to switch the tracks, and you’ll save the five people. Sounds easy, right? But there’s a problem. Along this offshoot of track leading to the sandpit stands a man who is totally unaware of the trolley’s problem and the action you’re considering. There’s no time to warn him. So by pulling the lever and guiding the trolley to safety, you’ll save the five passengers. But you’ll kill the man. What do you do?

Most people say they would pull the switch and kill 1 rather than 5. A conventional and widely-accepted answer.
But if the terms of the situation are slightly changed, people tend to give quite a different answer. Suppose that there is no switch, but that you are instead standing on a bridge over the railway track next to a very fat man, and you are sure that if you pushed him onto the track his bulk (but not yours) would be sufficient to stop the train before it hit the group of people. What do you think now? Should you kill the fat man?
Most people who said ‘yes’ to diverting the train say ‘no’ to pushing the fat man. But if you do, many moral philosophers would say you have made a mistake. Not because you are wrong about whether or not to kill people to save others, but because you are being inconsistent about your killing decisions.

But there’s a third version of the trolley problem where instead of pushing the fat man, by turning a switch he will fall through a trapdoor, stop the train and save the five people. When you ask people that, most people still say you shouldn’t kill the fat man. More people are willing to turn the switch than push the fat man, but not dramatically more.

Both of these grave dilemmas constitute the trolley problem, a moral paradox first posed by Phillipa Foot in her 1967 paper, “Abortion and the Doctrine of Double Effect,” and later expanded by Judith Jarvis Thomson. Far from solving the dilemma, the trolley problem launched a wave of further investigation into the philosophical quandary it raises. And it’s still being debated today, very popular with philosophers with a certain whimsical bent.

The trolley problem is a question of human morality, and an example of a philosophical view called consequentialism. This view says that morality is defined by the consequences of an action, and that the consequences are all that matter. But exactly which consequences are allowable?

Take the two examples that make up the trolley problem. On the surface, the consequences of both actions are the same: one person dies, five survive. More specifically, in both examples five people live as the result of one person’s death. At first, both may seem to be justified, but most people, when asked which of the two actions is permissible – pulling the lever or pushing the man onto the tracks -say that the former is permissible, the latter is forbidden. It reveals a distinction between killing a person and letting a person die.

Why is one wrong and another possibly allowable when both result in death? It’s a question of human morality. If a person dies in both scenarios, and both deaths directly result from an action you take, what’s the distinction between the two? Aside from that highly improbable moment when you actually find yourself near a big man and a runaway trolley, the trolley problem seems far-fetched. But philosophical questions like this have real-world implications for how people behave in society, governments, science, law and even war.

The trolley problem is based on an old philosophical standard called the Doctrine of Double Effect. This doctrine says that if doing something morally good has a morally bad side-effect it’s ethically acceptable to do it provided the bad side-effect wasn’t intended. This is true even if you foresaw that the bad effect would probably happen.

The point of the trolley problem is to figure out what principle distinguishes those two variations – and, more importantly, what that tells us about real life cases. Can we apply that distinction to war, to medical ethics, to abortion? Originally the trolley problem was devised to explain the rights and wrongs of abortion. Today, it is often used in just war theory, the distinction between targeting a military installation knowing that civilians will be killed as bystanders, and directly intending the death of civilians.

Applied ethics is the application of moral theory to the real world.

Imagine applying our trolley logic to the case of the death penalty. Imagine further that a new study showed that, without question, the death penalty really does cut down the number of murders committed in any given year. Surely, under such (admittedly hypothetical) circumstances, the lever diverting the trolley would be rapidly replaced by the lever operating the executioner’s trapdoor. In fact, the replacement is made easier when we consider that the ‘sacrificed’ individual is likely to be a cold-blooded murderer. The wrinkle here is the word ‘likely’, because, from a purely utilitarian perspective, the occasional execution of an innocent makes no difference to the morality of the death penalty – the net benefit justifies the sacrifice.

Thus, on sole application of the findings of the Trolley problem on the much debated issue of death penalty’s validity, there arise two different sets of arguments.

Similar to the answer which involves saying yes to the train’s diversion but no to the deliberate pushing, the first argument against death penalty distinguishes between ‘killing a person’ and ‘letting a person die’. Hence, the preference for life imprisonment over death penalty. The second school of argument is based on utilitarianism or the principle of ‘greatest good for the greatest number’ as proposed by Jeremy Bentham and thus the methodology doesn’t really create that much of a hindrance since the outcome remains the same.

While the debate over validity and constitutionality of the death penalty remains ever-present, maybe a fresh perspective will help sort out the dilemma. Thus, the trolley problem. A new methodology of argument, perhaps.



The December book bucket

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