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Video games and IPR

Video games are amongst the most widely enjoyed forms of entertainment today. While video games are predominantly played by people in their adolescence, these games are making their way into a multimillion-dollar full-fledged industry that is based on competitive playing. With this level of involvement of games in the lives of people everywhere, it then comes as no surprise that there have been cases where popular characters of video games have come under the spotlight of intellectual property theft. Let’s take a look at a case riddled with twists featuring some of the world’s most popular movie and video game characters.

The case

When we picture the word “Mario”, we instantly imagine a character wearing a red plumber’s uniform, bouncing on platforms to save his princess from evil forces. And when we hear the phrase “King Kong”, our minds instantly jump to a massive gorilla waving his arms around, swatting at airplanes atop the empire state building. It may come as a surprise that the owning studios of these productions have in fact gone head-to-head in a rather interesting lawsuit regarding the theft of the idea of the popular oversized gorilla.

The movie King Kong was first released in the year 1933 by Merian C. Cooper. The production house for King Kong was RKO, which later went on to release subsequent sequels of King Kong in the following years. The movie franchise went on to do very well, earning their producers and directors large sums of money throughout the runtime of the movie. In the year 1981, Nintendo released their game Donkey Kong, where Donkey Kong was a large ape and would attempt to stop Mario (then called Jumpman) from reaching Pauline (Mario’s romantic interest, then called Lady). The game was a big hit and it was simply a matter of time before the game caught the eye of Universal Studios, who then apparently held the license for King Kong. Outraged at Nintendo and other game studios for blatantly copying the idea of King Kong, Universal Studios sternly ordered every agency selling products under the name of Donkey Kong to pay Universal Studios royalties for the misuse of Donkey Kong by way of cease-and-desist letters. Almost all the agencies reverted back with the royalty payments, except Nintendo.

Nintendo attempted to settle the suit outside the proceedings of a court in the year 1982 to which the Vice President of Universal Studios Robert Hadl responded by asking Nintendo to stop making copies of Donkey Kong. Nintendo’s attorney Howard Lincoln pointed out that the name King Kong had previously been used on multiple products that were in no way affiliated with Universal Studios, claiming that Universal Studios in fact did not have the rights to King Kong in the first place. Hadl then asked Nintendo to brace themselves for a lawsuit, claiming that Universal Studios saw lawsuits as a way of making money.

John Kirby was brought in by Lincoln to represent Nintendo in the case because he had a history of winning big-name lawsuits for companies like Sony. During the proceedings, Universal Studios claimed that Nintendo’s Donkey Kong and Universal Studios’ King Kong could easily be confused with each other and that the story line of the movie and game were also similar. To counterattack, Nintendo asked a representative to assure the court that the gameplay of Donkey Kong was in no way similar to the storyline of King Kong. Additionally, Nintendo went on to claim that Universal Studios did not own the rights for King Kong and shockingly enough, that Universal Studios were aware of this fact and still decided to demand royalties for King Kong despite knowing they did not have the rights for King Kong.

Historically, the rights of King Kong had always been a territory undefined. When King Kong was initially released by Cooper in 1933, the rights were firmly with Cooper. Later on, Cooper realized that other production houses were making movies with the character King Kong, and that he had no clear documents preventing them from doing so. Cooper tried to find papers to authenticate his rights but found that he had given the rights for only 2 movies to a production house called RKO Pictures and for a book written by his friend Delos W. Lovelace sometime in the decade of 1970, a whole decade before the release of donkey Kong by Nintendo. However, Cooper could not find documents stating that the license was given to RKO Pictures. During this time, Universal Studios wanted to make their own series of movies on King Kong but were stopped as the rights to King Kong were with RKO Pictures. Desperate to win King Kong, Universal Studios argued in court that the copyright on Lovelace’s novel (which was the only existing document proving ownership of any kind) had expired by then and that King Kong was therefore a public domain character. The court decided that King Kong was indeed in the public domain and therefore anyone could make their reproductions of the character as long as the story involving the character was not copied.

The presiding judge during the 1982 case of Nintendo versus Universal Studios kept all this in mind and reprimanded Universal Studios for knowing fully well that Universal Studios had themselves contested that King Kong was a public domain character but still asserted that they owned the character and even demanded royalties from agencies making use of King Kong. The presiding judge further ruled that the game Donkey Kong was not similar to the storyline of King Kong in any way and was “a parody” at best, thus solidifying Nintendo’s case against Universal Studios. The judge declared that any agency that had paid royalties to Universal Studios were free to demand the royalty fee back from Universal Studios and that all cease-and-desist letters from Universal Studios were rendered null and void. Further, the court found that a game released by a company called Tiger Electronics was very similar to Donkey Kong and thus ordered Tiger Electronics to pay Nintendo a sum of $58 million.

Universal Studios was the one to push this lawsuit against Nintendo in order to extract money from them by means of a character that they didn’t have the rights for. Universal Studios knew this in fact because a few years ago they themselves had gone to court to prove that King Kong was a public domain character, and anyone was free to use the character. Nintendo had initially planned to settle the matter outside of the court but went against the movie giant Universal Studios and even won with getting money from profits from a by-product of the ruling. This case shows us that it is never a good idea to underestimate the court or your opponents, and to assume that all secrets regarding ownerships and rights are out in the open for everyone to access. Universal Studios underestimated the court and Nintendo and subsequently ended up losing the case.

Author: Udit Sharma, Graduate student in Additive Manufacturing, Uppsala University, Sweden

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Choosing between Copyright & Patent

The provision of Section 3(k) of Indian Patent Law, that says computer software per se is not patentable till it has technical applications, puts most of the inventors down. Knowing the fact that software patent in India is tough; the next question from the inventor is that, if not patent, can we at least get a copyright?

The fact of the matter is that the statutory right that one gets in the case of patent cannot be substituted by a copyright and it is important to understand difference between the two. Copyright and patents fall under separate legal regimes and for one single product, one may file for patent as well as copyright.

Prime difference between copyright and patent is that copyright protects only expression of the idea but not the idea itself, whereas, patent protects the concept as well. For example, if there is a product, meant for administration of a hospital, the idea or concept is administration of a hospital, which does not get protection under copyright law. However, the way code has been written is the expression of the idea and the author who has written the code has copyright over it. If any other person writes another code (without copying code from first author), he also has his copyright on the product. On the other hand, if there is a patent for the product, the patent holder can prevent everyone else from making, using, selling, offering for sale or even importing the patented product in the jurisdiction (s) where he has valid patent rights.

Independent creation of copyright is not an infringement whereas the same is not true for a patent. This means that if the work is not directly copied from the copyright holder, and created independently, it is not deemed to be copyright infringement. On the other hand, independent creation of patented product is deemed to be infringement.

As soon as patent application is filed, the applicant may write ‘patent applied for’ or ‘patent pending’ on the product, whereas copyright notice, such as ‘(c) copyright, Origiin IP Solutions LLP’ can be written without registration as well. Though copyright is an inherent right and needs no formal registration as such, but registration becomes important and registration certificate serves as a proof of ownership in case of copyright infringement or even in case of merging/acquisition or to obtain funding/loan from bank or venture capital.

Novelty-Critical Requirement

Novelty is the most critical requirement for a patent which means that before the date of filing a patent application, there shall not be any disclosure of the invention. Whereas copyright, though requires originality in the work, does not have novelty as a critical requirement that enables one to file backdated application as well. Term of a patent is 20 years from the date of filing whereas term of copyright is 50-70 years from the date of death of last author.

It is interesting to note that copyright registered in any country which is a member of Berne Convention hold good in all countries which are members of Berne Convention. In order to get patent rights in multiple countries application shall be filed separately in each country. Though we have single patent application filing platform like PCT, patent rights are granted only by national offices.

Case study

In order to understand difference between copyright and patent, lets have a look at Stac vs Microsoft, an interesting court case in the USA, which Microsoft lost and was required to pay $120 mn for its willful infringement of #4,701,745 (a compression software patent). Stac had a software patent on the algorithm for its PC hard disc data compression software product. Microsoft expressed interest in working with Stac and in the process copied the compressed algorithm of the Stac product. Microsoft then wrote its own code to execute the Stac algorithm and used the code in MS DOS 6.2 product. Stac sued Microsoft for patent, trade secret, and copyright infringement.

A permanent injunction was given against Microsoft and was ordered to pay Stac $120 mn. Calculation of the damage was calculated on basis that Microsoft had included the infringed code which prevented Stac from marketing millions of copies of its separate data compression software. After litigation, for about a week, a lobotomized version of DOS was shipped with the compression feature disabled. DOS manuals were shipped with stickers on the cover warning to ignore the chapter on compression. MS finally got license to use the algorithm in DOS and agreed to pay $1 mn per month for 43 months and to purchase about $40 mn of Stac convertible preferred stock.

Since Microsoft did not copy the source code and wrote a new code for same algorithm, Stac could only prove patent infringement in the Court but not copyright infringement as independent creation of the work is not copyright infringement. Patents can protect the basic concept of a software product, regardless of the actual source code but copyright only protects source code.

Before you decide between copyright and patent protection for the software product, it is essential to understand the difference between the two so that you are clear about what rights you are getting. Though both patent and copyright have their own pros and cons, it makes a lot of sense to consider registration process based on requirements.

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Copyright registration in India

Copyright is a type of Intellectual Property (IP) that gives its owner the exclusive right to make copies of a creative work, usually for a limited time. In India, Copyright Act, 1957 and Copyright Rules 2013 cooperatively deal with the subject of Copyright.

Section 13 of the Copyright Act, 1957 allows Copyright protection for the following works:

  • Original literary, dramatic, musical works
  • Artistic work including photographs, sculptures, architectural work, painting, drawing, engravings or any such work of artistic craftsmanship;
  • Cinematograph films
  • Sound recordings
  • Software, Computer programs and allied compilations (as part of literary work)

Registration of copyright is not mandatory as copyright is inherent and automatic right. When any of the abovementioned works takes birth, along with it comes copyright into the picture. Therefore, it isn’t mandatory to register copyright. However, registering copyright gives an extra layer of protection to such works. By having an existing record, the evidence of such an existing work is created. This makes legally proving the existence of copyright in a court of law, very easy. Matters of assignment, transfer of ownership, creating an authorized agent etc. is generally made easier when you have a registered copyright. With a registered copyright, the risks involved are less.

Authors have prima facie copyright protection. Section 2(d) of the Act lays down authors of works:

 

Literary work Author of the work
Dramatic work Author of the script
Musical work Composer
Artistic work other than photographs Artist
Photograph Photographer
Computer-generated literary, musical, dramatic work, artistic work Person causing the creation of the work

 

Cinematograph films Producer
Sound recording Producer

 

Other than authors, owners or any authorized agent of the author, or any person/organization with exclusive rights over the work, obtained through a contract, can also enforce the copyright.

Copyright registration process

Chapter X of the Copyright Act, 1957 and Chapter XII of Copyright Rules, 2013 elucidate upon Copyright Registration. Registration involves the procedure of entering the particulars of a work in the Register of Copyrights. Copyright Register has 6 parts to it, each part pertaining to each type of work. The Register is arranged alphabetically, following Indexes and each part is maintained both physically and electronically. The work seeking copyright will be entered into the appropriate part of the Register, if it is deemed worthy of copyright protection.

To register a Copyright, the Registrar of Copyrights should receive an application for the same with prescribed fees. Form-XIV should be used for the Copyright registration application. If changes are to be made to an already existing copyright, then Form XV should be used. After receiving an application, the Registrar of Copyrights will then conduct an inquiry and decide accordingly.

Rule 70 of Copyright Rules 2013 lays down the particulars for Application for Copyright Registration.

  • The Application should be made with Application Form (Form XIV), Statement of Particulars (SoP) and Statement of Further Particulars (SoFP).
  • The Application is to be signed either by the author or the owner of the work. In case of owners, a NOC duly signed by the author shall be attached along with the application.
  • The Application should be filed in the Copyright Office in person, by post or using the online filing facility available on the official website of the Copyright Office. The link for the same is provided here. https://copyright.gov.in/Default.aspx
  • The Applicant has a duty to give notice (including such statements, particulars or enclosures used for the application) of making such an application to every person claiming or having an interest in the subject-matter of the copyright or contesting the applicant’s rights over such work.
  • An inquiry will be conducted in case any objection is received by the Registrar within a period of 1 month, or if the Registrar is not convinced about the correctness of that application and/or details attached with it.
  • An opportunity for a hearing will be given to the Applicant before rejecting the application.
  • In case no objection is received within 30 days from the date of receipt of the application and if the Registrar is satisfied with the application and the particulars in it, the same will be entered in the Register.
  • The Registration process comes to an end only when the work entered in the Register of Copyrights and the copy of such entry is made, signed and issued by the Registrar, Deputy Registrar or such authorised person. Such a copy will be sent to the concerned parties within a reasonable time.
  • Application to register unpublished work shall be accompanied by 2 copies of the work
  • Object code and source to be included in case of Computer programs
  • In case of registering an artistic work capable of being used as a good, a statement indicating the same, along with a Certificate from the Registrar of Trade Marks proving that there is no registered Trade Mark that is identical or deceptively similar to such artistic work, or that no Trade Mark application for registration has been made by any person other than the applicant.
  • For artistic works capable of being a registered Design, applications for copyright registration shall be accompanied by affidavits stating if such an item has been registered under the Designs Act, 2000, if there has been an application of the work to any article under industrial process and if it has been reproduced more than 50 times.

Statement of Particulars (SoP)

Statement of particulars to be attached with Application form shall include the following details:

  1. Name, Address and Nationality of the Applicant
  2. Name, address and nationality of the Author. In case the author is deceased, the date of his demise
  3. Names, address and nationalities of the owners of the various rights comprising the copyright in the work and the extent of rights held by each, together with particulars of assignment and licenses, if any
  4. Names, addresses and nationalities of other persons, if any, authorized to assign or license the rights comprising the copyright
  5. Nature of the applicant’s interest in the copyright
  6. Class, description, title of the work
  7. Language of the work
  8. Whether work is Published or Unpublished
  9. In case of a published work, Year and country of first publication with name, address and nationality of the publishers. Additionally, Years and countries of subsequent publications with details of publishers.
  10. In case of an “artistic work”, the location of the original work, including name, address and nationality of the person in possession of the work. (Year of completion to be included in the case of an architectural work)
  11. Certificate from Registrar of Trade Marks for artistic work capable of being used as goods
  12. For an artistic work that could potentially be registered as a Design, details showing if it has been registered under Designs Act, if it has been applied to any article by an industrial process, and the number of times it has been reproduced.
  13. Other remarks
  14. Registration number (entered by Copyright Office).

Statement of further particulars (SoFP)

SoFP is to be included with the application for registering literary (including computer programs and software), dramatic, musical and artistic works only. It contains details such as:

  1. If the work is original / If work is the translation of a work is available in the public domain, or translation of a copyrighted work / If it is an adaptation of a work in the public domain or of a work in which copyright subsists
  2. In case the work is a translation or adaptation of a copyrighted work-

(a)Title, Language of the work, (b) Name, address, nationality of the author of the original work and date of death in case of a deceased author (c) Name, address, nationality of the publisher, if any, of the original work (d) Documents proving authorization for a translation or adaptation including the name, address and nationality of the party authorizing.

Fees

Rule 83 of the Copyright Rule, 2013 lays down that Schedule Two contains the specificities of the registration fees.

 

Work Fee per work In case of changes in particulars
Literary, Dramatic, Musical or Artistic Work Rs. 500 Rs. 200
Literary or Artistic work, capable of being used in relation to any goods Rs. 2000 Rs. 1000
Cinematograph Film Rs. 5000 Rs. 2000
Sound Recording Rs. 2000 Rs. 1000

Payment of such prescribed fee can be done in various ways. By postal orders or bank drafts issued by a Scheduled Bank under Reserve bank of India Act, 1934, as a deposit into a Government Treasury, through payment gateway provided with the online-filing facility of the Copyright Office Website etc. are some of the ways prescribed under Rule 83.

Few examples of registered copyrights

 

Title of the work Type of Work Issued on Applicant
To hell with Corona Literary/ Dramatic 5/1/2021 Bhanu Arora
Andy Artistic 9/12/2020 Aum international Studios Pvt. Ltd.
Lead Management Distribution Methodology Computer Software 8/6/2019 R Varadarajan
Bachpan Theher Jaa Sound Recording 6/9/2018 Vrinda Parwal
Tere Ishq ki Aadat Cinematograph film 30/10/2017 Mohd. Farman

 

Author: Bhavana B, School of Law, CHRIST (Deemed to be) UNIVERSITY, Bangalore

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Copyright and Fair Use Doctrine

Copyright is a legal term used with respect to the rights that an author has over his work like literary, dramatic, or artistic work, etc. In India, the law related to copyright is governed under the Copyright Act, 1957 (the Act). Section 14 of the Copyright Act 1957 states, “Copyright means the exclusive right to do or authorize the doing of certain acts in respect of works such as literary, dramatic, musical, artistic, cinematography, sound recording, to do acts of reproduction of the work, issuing copies of the work, and to perform the work or communicate the work to the public.”

All subject matters protected by copyright are called “works”. Such works are mentioned under Section 13 of the act, as below:

Original Literary work

Example: Works such as books, magazines, articles, journals, etc.

Dramatic work

Example: Composition, choreography, drama, poems, etc.

Musical work

Example: Work which consists of music, its graphical notations, and combinations; its composition.

Artistic work

Example: Paintings, Sculpting’s, graphics, etc.

Cinematographic films

Example: Movies, or any other work with audio and visual effects.

Sound recordings

Example: Person Playing a song or musical instrument.

Rights of Copyright Owner

The creator of the original work is considered as “the author” of the work, under the act, the author is considered the first owner of the work. To prevent others from using the original work, the author possesses certain rights such as, to claim compensation for the infringement of his work. There are two types of rights that an author usually possesses, such as:

Economic rights

  • The right to reproduce,
  • The right to make adaptations of the work,
  • The right to distribute,
  • The right to perform the work publicly,
  • The right to broadcast the work,
  • The right to rent the work.

Under the Copyright Act, 1957, Section 14 enumerates these rights for the subject matters of copyright;

  • In case of literary, dramatic, or musical work which exclusive of computer program [Section 14(a)]

The exclusive rights include the right to do:

  1. Reproduction of the work in any material form which includes electronic form,
  2. To issue copies of the work to the public which are not already in circulation,
  • To perform or communicate the work to the public,
  1. To make a cinematographic film or sound recording in respect of the above-mentioned works,
  2. To translate such work,
  3. To make adaptations of such work,
  • to do, about a translation or an adaptation of the work, any of the acts specified concerning the work in sub-clauses (i) to (vi).
  • In the case of Computer Programmes [Section 14(b)]

In addition to the above exclusive rights, mentioned under section 14 (a), additional rights include the right to sell, commercially rent or offer to sell or commercially rent the program.

The rights of the author under section 14 (c) include the right:

  1. To reproduce the work in any material form including electronic form. This includes work depicted in two or three dimensions,
  2. Includes the right to communicate the work to the public,
  • Includes the right to issue copies of the work to the public,
  1. Includes the right, to include the work in any cinematographic film,
  2. Includes the right to make adaptations of the work.

The rights of the author under section 14 (d) include the right:

  1. To make copies of the film or a photographic image of the forming part,
  2. Storing of it in any medium by electronic or other means,
  • To sell or commercially rent the work,
  1. To communicate the work to the public.

The rights of the author under section 14 (e) include the right:

  1. To make any other sound recording embodying the original work and storing it in any medium,
  2. To sell or commercially rent the recording,
  • To communicate the recording to the public.

Moral Rights

They are special rights of the author and are independent of the author’s economic rights. Even after the transfer of the economic right, the author still has his moral rights, such as:

  • Right to paternity

It is the right that instills the right to assert the authorship of the work and prevent others from claiming authorship of the work.

  • Right to Integrity

Through this right, the author can object to any distortion, modification, or mutilation of his work.

Copyright Infringement

Copyright Infringement is the utilization or production of a material, which is copyrighted without the permission of the copyright holder. In other words, copyright infringement is the breach of rights that are granted exclusively to the owner of the copyrighted material.

Section 51 of the Copyright Act 1957 defines infringement. It deems that the copyright in a work is infringed if:

  1. When any person, without a license granted by the owner or registrar of copyright under this act or contravenes the conditions of a license granted or of any conditions imposed by an authority which is competent under this act:
  • Does anything, which under this act, only the owner is allowed to do or has the exclusive right to do, or
  • Permits for profit, communication of the work to the public where such communication would amount to infringement unless he is not aware and had reasonable ground to believe that such communication to the public would not amount to infringement.

When any person,

  • Makes for sale or hire, or sells or lets for hire, or by way of trade displays or offers for sale or hire, or
  • Distributes either for the purpose of trade or to such an extent as to affect prejudicially the owner of the copyright, or
  • By way of trade exhibits in public, or
  • Imports into India (provided that, this sub-clause shall not apply for import of one copy of any work for the private and domestic use of the importer),

Any infringing copies of the work.

In the case of K R Venugopala Sarma v. Sangu Ganesan, it was held that “one picture can be said to be a copy of another picture only if a substantial part of the former picture finds a place in the reproduction and the copy must suggest that it is the appellant’s picture”.

In another case, Wadia Movie Tone Pvt Ltd v. Vishal Bharadwaj the Character in the Film Rangoon, “Janbaaz Julie” was claimed as substantial copying of the character “Fearless Nadia” in the Film “Hunterwali” (1930). The court held the defendants guilty of infringement and ordered Rs. 2 Crore as a Bank Guarantee.

Fair use/Fair Dealing Doctrine

Fair use is a legal doctrine that permits a person to make use of any work to maintain the originality and sanctity of the work.

In congruence with the copyright laws of the UK, India has adopted the concept of Fair Dealing. The same is referred to as fair use in the US copyright Laws.

The meaning of fair dealing depends on different facts and circumstances of the case. In India, the court determines the applicability of the doctrine based on the nature, facts, and circumstances of the case. The doctrine has been usually determined keeping in mind the economic impact that the usage of copyrighted work has on the owner. In cases where the impact has not been significant, the act can constitute fair dealing. The nature of fair dealing depends on four factors:

  • Purpose of use

If the work was used for reviewing, commenting, criticizing, etc, then the doctrine is applicable.

  • Nature of work

The characteristics of the work, the content of the work is also important in determining the applicability of the doctrine.

  • Amount of work used

The quality and quantity of the work are important in determining the applicability of the doctrine.

  • Effect of the work on the original work

The effect the copied work has on the original work, i.e., to what extent can the original work be harmed, is also important in determining the applicability of the doctrine.

Fair dealing has been covered under Section 52 of the Copyright Act, 1957. This section allows the defense of fair dealing for certain purposes, such as:

Fair dealing with any work, not being a computer programme for the purposes of-

  • Private and personal use, including research;
  • Criticism or review, whether of that or any other work;
  • The reporting of current affairs, including reporting of lectures delivered in public.

The transient or incidental storage of a work or performance purely in the technical process of electronic transmission or communication to the public;

  1. The reproduction of a work for the purpose of judicial proceeding or for the purpose of a report of a judicial proceeding;
  2. The reading or recitation in public of reasonable extracts from a published literary or dramatic work;
  3. The reproduction of any work in a certified copy or supplied in accordance with any law for the time being in force;
  4. The reproduction of any work-
  • By a teacher or a pupil in the course of instruction; or
  • As a part of the questions to be answered in an examination; or
  • In answers to such questions;

The performance of a literary, dramatic, or musical work by an amateur club or society, if the performance is given to a non-paying audience, or for a benefit or a religious institution.

In addition, the court also relies on precedents along with the facts and circumstances of the case to determine the applicability of the doctrine.

Some cases related to fair dealing;

In this case, the Court considered that a parody did not constitute an infringement of copyright as long as it has not been misused or misappropriated.

In this case, it was held that since the defendant’s book was not criticism or review, none of the exceptions under Section 52 could be attracted and that the defendant’s actions amounted to copyright infringement.

In this case, the court held that, “To constitute a fair dealing there must be no intention on the part of the alleged infringer, to compete with the copyright holder of the work and to derive profits from such competition and also, the motive of the alleged infringer in dealing with the work must not be improper.”

Through Fair use, the accused can defend their work against infringement claims for the purposes covered under the Copyright Act, 1957. In India, this concept has managed to provide an exhaustive list of exceptions to the claim of infringement under Section 52 of the act. The ambit of this concept is mostly based on interpretations. Many cases, as observed have had decisions made with due regards to the facts and circumstances of the case in hand.

Author: Amulya Bhat, Symbiosis Law School, Hyderabad

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