CORPORATE LAW

Corporate Liability and Human Rights



After reading the title you might be wondering, that are we trying to establish link between South and East pole. Meaning by how can we connect these two terms which are such unrelated to each other?

Now here the story begins, as we all know this era is of globalization and industrialization where trade is free. There are Multi National Corporations working around for decades in the world for expansion of there business with a motive of earning profit and also with a latter motive of boosting their parent country economy.

But the problem is those todays these so called multinationals are become power houses latter production houses. They today are taking workers rights and environmental considerations as hindrance to their motive which has resulted in disastrous results for the world environment .However all these problems did not arosed all of sudden ,it was a gradual process fanned by HOST as well as PARENT country. National Governments were and are still ready to collude with these multinational for the sake of perceived benefits to their own economies or rather personal benefits of the rulers of the nation.

Link Between these two concepts was first brought in limelight by April 1999 Department of Public International Law at Erasumus University of Rotterdam in a colloquium on CORPORATE RESPONSIBILTY.Main aim behind this colloquium was to
---bring together different groups working to achieve corporate accountability between lawyers, trade unionists,academics,developmental NGOs and campaigners
----to review legal initiatives aimed to control these organizations and to suggest future directions and initiatives for civil society in making corporations more accountable to states especially citizens and planet


However it is worth mentioning that this seminar did not pretend to arrive at definitive conclusions or strategies. To understand the things better we can take example of ADIDAS


Adidas sponsor of Euro2000 football tournament is basically another company to many contractors in countries where low wages and poor working conditions are common .During the tournament Adidas was found guilty of several violations of workers in Bulgaria, EL Salvador, Thailand paying less an minimum wages excessive working hours making workers taking pregnancy test, prohibiting workers of collective bargaining and all this was violating FIFA code designed keeping ILO in view. However due to technical difficulties and as well as political pressure nothing much happened and after a certain hype cases went up above in clouds.

Then in USA Arthur Anderson, a well respected audit firm was held responsible for non –disclosure of vital information leading to ‘Enron ‘fiasco and faced criminal charges from government in obstruction of justice. Several high profile executives at Enron and WorldCom were responsible for the collapse of thousands of jobs and billions of dollars and they are now in judicial net. The whistleblowers estimated around 3.06 billion of USD and 797 million in 2002 as irregularities including transfers

In India also unethical practices and variety of financial scams have been witnessed such as capital market scams, co-operative sugar factory scam, land scams, fake stamp paper printing scams etc involving various people by way of gross misuse of public funds affecting ordinary people.


We have seen clashes between high profile clashes between entrenched promoters group and aggressive flamboyant professional CEOs in number of reputed companies in matters such as ‘Indian Hotels’,’Tata Finance’,’Britania’ on matters of corporate governance. Unfortunately Indian Financial institutions despite their holding substantial equity stake in such companies did not play an effective inter ventionaist role at right time.

The recent ill-conceived attempt by Satyam computers services ltd. To acquire ‘Maytas properties’ and ‘Maytas Infra’,the companies owed by the promoters chairman of Satyam and family, to cover up the huge financial and accounting scam of Satyam amounting to Rs.78 billion proves the point.

Multinational Corporations can be held accountable for their operations in other countries either directly or through the governments of countries where they operate and under either domestic or international law. States are obliged to protect the rights of people in their jurisdiction, implying to regulate companies operating in their jurisdiction. Therefore it is important to consider the responsibility of state while blaming MNCs.It means exposing and challenging collusion between governments and MNCs in both home and host countries. And presently due to privatization of public services state are transferring the responsibilities e.g. to provide water now private companies are there resulting in poorer quality of service to poorer class. In many countries Government bend or waive their own labour and environmental legislation to allow MNCs a freer rein or turn blind eye to violations.

For instance …. Sri Lanka has created free trade zones within which the state allows a separate system of law or waivers of national law.

In Burma state oil and Gas Company MOGE was part of a joint venture with UNOCAL accused of serious human rights violations, carried out by the Burmese security forces, to clear territory and obtain forced labour for construction of a gas pipeline .

In Nigeria new civilian government, state security forces are still being used to repress protest by local people at the activities of shell and other companies in Niger River delta.

However there are many Nations which have implemented legislature to tackle corporate liability like in United States there is (Alien Tort Claims Act) ,which is 200 year old law and decides about the jurisdiction of the companies situate in the country whether be it American or Non-American.

In England the legal standard is “duty of care ”which is an obligation applying to everyone in the UK,individuals as well as organizations.

Even after these legislation problem lies in distribution of justice, claimants working are disappointed on success or failure of legal action often depends not on facts of the case but on technicalities of the case like where lies the actual violation? or what is the jurisdiction?, relationship between parent and daughter companies and where the duty of care lies. In Cape case for instance, three years have now been spent in argument where the case should be held?

Moreover there are international organizations like NAFTA, OECD etc but there sketching is as such that they help corporate rather than the victims to have a proper back up for compensation and other remuneration. Therefore something else that is involvement of NGOs and the general public is must. Moreover there are conventions of ILO which are supposed to be handling the “hard law” that is the law related to fixation of corporate liability, allowing claimants to proceed against the governments in case of any sort of violations. It also provides way of negotiating between workers, governments and between employer and worker. Now even World Bank and World Trade Organizations are taking care that their member states are not violating the principles of humanity and are working under proper liability. However this sometimes is not very true because many of its rules are framed for profit at any cost, leading again its establishment no where.

However the issue of social responsibility of business is not free from the conflicting perspectives from intellectuals. Economist like Adam Smith and Milton Freidman were of opinion that only responsibility of business was to perform its economic functions efficiently that is of providing goods and services and earn maximum profit. And better to leave social issues on government itself. But economist like Paul Samuelson and Robert Dahl while criticizing this highly materialistic viewpoint advocated a spirit go social responsibility as an inherent feature of modern business firm.

In the present era of intense competition, it is imperative for the corporate to generate and sustain ‘goodwill’among their stakeholders and community at large. Therefore active participation in various social welfare projects is surely going to improve corporate visibility .Global MNCs like General Motors ,Ford Motors, Microsoft ,McDonalds have sponsored many social welfare and philanthropic activites.And as Corporate India is Concerned it is also not far behind.The Giant Indian Companied viz.Tata Steel,Infosys,ITC,Sail,Bhel etc have also been working tremendously on the front of social service.Tata steel for instance has been a pioneer in discharging social responsibilities and has made several contributions in community development, social welfare ,tribal and adivasi development,agriculture,rural industrialization etc.


Moreover Lawyers, Trade unions and NGOs have a common goal to minimize the impunity of MNCs as power increases with globalization. Moreover there are certain things like

*pooling of resources

*build a body of evidence around case law

*implementation, implementation and implementation, otherwise the international instrument will become toothless and initiatives on it would remain vain

*sharing of knowledge as done by SOMO and IRENE which can serve as clearing house


So to sum up the things it can be said that the corporate being the part of society can’t escape from there liability towards it .They have to sketch there profit earning a way that it doesn’t question the mere existence of the human society on whole. They should and are expected to modify there policies in a way such that social responsibility simultaneous to their business can be maintained. Again it is also the fact that up till now they have been voluntarily avoiding such situation or even if being following that is out of mass outcry. For Instance in 1984 in India happened the Bhopal Gas Tragedy which happens to be one of the gravest industrial disasters it was then when our judiciary drafted “Absolute Responsibility ” on the Union Carbide Limited and that was the first notable case in India where Corporate were forced to realize their responsibility toward society .Now it is up to the Governments of the nation and also the General public to speak up for their rights and secure future of theirs as well as that of their generations to come.

References:
1 Google Wikipedia(Corporate Liability)
2 ICFAI University Journal Of International Business Law
(Corporate Liability and Human Rights)

By:-
Karmashil Bhagat
Parul Yadav
IInd Yr. L.L.B(3Yr Course)

 







WHETHER SEARCH ENGINES ARE LIABLE FOR COPYRIGHT INFRINGEMENT


This article discusses the application of Indian copyright law to the phenomenon of search engines which has become ubiquitous on World Wide Web on the Internet. In particular, I consider how the copyright law applies to “search engines”

I begin with brief background explanations of the Internet, the World Wide Web, the technological infrastructure within which search engines operate.

The Internet

The Internet had its genesis in the middle of the Cold War when the US Department of Defense sought the development of a network of geographically dispersed computers which could continue to function when there were a number of damaged computers or telephone lines linking them. Rand Corporation, a research and development think tank for public policy set up with the encouragement of the US Air Force, came up with the idea of a packet- switched network.. Originally confined to the US military and the research departments of US educational institutions, the growing presence of corporate institutions on the Internet started a trend which opened up the Internet to more widespread membership.

What is Search engine***

A Web search engine is a tool designed to search for information on the World Wide Web. The search results are usually presented in a list and are commonly called hits. The information may consist of web pages, images, information and other types of files. search engines operate algorithmically or are a mixture of algorithmic and human input. A program that searches documents for specified keywords and returns a list of the documents where the keywords were found. Although search engine is really a general class of programs, the term is often used to specifically describe systems like Google, Alta Vista and Excite that enable users to search for documents on the World Wide Web

***www.wikipedia.org


A search engine operates, in the following order

1. Web crawling

2. Indexing

3. Searching

                        

                                      Web search engines work by storing information about many web pages, which they retrieve from the WWW itself, hence it works as an automated Web browser which follows every link it sees. When a user enters a query into a search engine, the engine examines its index and provides a listing of best-matching web pages according to its criteria. Most Web search engines are commercial ventures supported by advertising revenue and, as a result, some employ the practice of allowing advertisers to pay money to have their listings ranked higher in search results. Those search engines which do not accept money for their search engine results make money by running search related ads alongside the regular search engine results. The search engines make money every time someone clicks on one of these ads.

What is Copyright?

What copyright is may be summed up as:

A type of property right which is founded on a person's creative skill and labour. It is designed to prevent the unauthorized use by others of a work, that is, the original form in which an idea or information has been expressed by the creator. Copyright is not a tangible thing. It is made up of a bundle of exclusive economic rights to do certain acts with an original work or other copyright subject-matter.

Copyright owner's rights**

The Copyright Act grants the copyright owner of an original literary work the exclusive right to:

a. reproduce the work in a material form (the "reproduction right");

b. publish the work (the "publication right");

c. perform the work in public (the "performance right");

d. broadcast the work (the "broadcast right");

e. cause the work to be transmitted to subscribers to a diffusion service (the "diffusion right");

f. make an adaptation of the work (the "adaptation right");

g. in relation to a work that is an adaptation of the work, any of the acts specified in (a) to (f); and

h. enter into a commercial rental arrangement in respect of the work reproduced in a sound recording or, in the case of a computer program, enter into a commercial rental arrangement in respect of the program (the "rental right").

** INDIAN COPYRIGHT ACT, 1957

What is Copyright infringement?

Copyright in a literary or artistic work is infringed when a person who is not the copyright owner and who is not licensed by the copyright owner, does, or authorises the doing of, any of the acts comprised in the copyright.

The onus of establishing the absence of a license rests on the copyright owner. In this context a license means no more than "permission" and may be an express or implied term of a contract or implied by conduct.

There can be no authorisation of infringement unless there is an act of infringement of the kind allegedly authorised. However, a person does not authorise an infringement merely by knowing that another person might infringe the copyright and takes no action to prevent the infringement. Authorisation includes a mental element and it cannot be inferred that a person had, by mere inactivity, authorised something to be done if he neither knew nor had reason to suspect that the act might be done. Nonetheless, where a person expressly or impliedly extends an unqualified invitation to the public to exercise the exclusive rights of the copyright owner, it is unnecessary that the authorising person have knowledge that a particular act comprised in the copyright will be done.

Are Search Engines Liable for copyright infringement?

“Search Engine Cache Isn't Copyright Infringement”**

There are some out there who have suggested that search engines such as Google and Yahoo are basically just massive copyright violators, because they scan, index and keep an archive of websites. That copied archive is, according to these commenters, an unauthorized copy. Now a court has basically destroyed that argument, noting that putting content online is giving an implicit license for search engines to index and copy. The lawsuit also claimed that individuals who visited the cached version were also infringers -- but the court also rejected that argument, claiming that the implied license extends to those users. The only part of the case that seems to be moving forward is whether or not this implicit license was broken after the lawsuit started and search engines still didn't take down the content. The idea there was that any explicit notification by the content holder might override the implicit license -- and thus search engines should have taken down the content as soon as the lawsuit started.

** www.techdirt.com

Statutory defences

The Copyright Act provides that it is not an infringement of copyright in a literary or artistic work where there is:(a) fair dealing for the purpose of research or study; (b) fair dealing for the purpose of criticism; (c) fair dealing for the purpose of reporting news; (d) reproduction for the purpose of judicial proceedings or the giving of legal advice; or, in the case of a computer program, a reproduction for backup purposes. Additionally, there are a number of other statutory exceptions to copyright infringement for various institutions including educational institutions and libraries in specified circumstances and for specified purposes.

Conclusion

It is submitted that the above discussion leads inevitably to the conclusion that the existing Copyright Act is quite able to cope with the phenomenon of the search engines in all its guises on the web. The current legislation does not overly constrain the continued development of the web, nor does it unduly prejudice the rights of copyright owners to control their web content. In cases where copyright owners wish to exercise greater control over their content than the legislation provides, the technological means are available to allow them to do so.

Field v. Google case **

Anyone who posts content to the web knowing that search engines display cached copies impliedly licenses the search engines to do so.

Parker v. Yahoo, Inc.***

Search Engine "Cache" Function is Covered under Implied License.

** http://blog.ericgoldman.org

*** http://blog.ericgoldman.org



--By

Faizkhan F Pathan

(LLB – final year, 3 yrs )