Tuesday, 28 February 2017

All Saints Church, Jaipur - a brief history

In 1875 the Ruler of Jaipur State Lieutenant General His Highness Maharaja Dhiraj Sir Sawai Madho Singh Bahadur GCSI, GCIE, GCVO, GBE, LLD donated a large piece of land for the construction of a church for the benefit of the Christian population of the city. He further donated Rupees 3,000/- towards the church building fund. The foundation stone of the church was laid during the Episcopate of Bishop Milman, Metropolitan of India.

The All Saints Church building is in the early English style with certain additions to make it suitable for the Indian climatic conditions. The building was opened for Divine Service and consecrated on 4th of August 1878 by the Most Reverend Dr. E.R. Johnson, Bishop of Calcutta and named the “All Saints Church”. All Saints was an Anglican church designed and completed under the supervision of Colonel Sir Swinton Jacob KCIE, CVO who served as the Superintending Engineer of Jaipur State from 1867 to 1902. The cost of construction at that time was Rupees 21,000/- A Chaplin used to visit from Bandikui, a town which had a sizeable Christian population due to the presence of the British Indian Railways. Records relating to this period are still available. The Albert Hall museum in Jaipur has also been constructed under supervision of Sir Swinton Jacob.

The Nave (central area for worshippers) is 55 X 16 feet. The Chancel (space near the Alter) is 14 X 12 feet and the Apse (area where the clergy is seated) is 19 ½ X 8 feet. The vestry (where articles associated with worship are stored) is 12 X 8 feet and the organ room of similar dimensions which also has the bell chamber is on the opposite side. They are separated from the Chancel by open arches with brass rods and curtains. Entrance to the vestry and the organ room are through small marble arches with foliated mouldings. Green marble pillars offset these arches.

The pillars of the main building are of polished red marble with cut stone caps and bases. Foliated bands of polished white marble were subsequently added, thanks to the generosity of Sir Tatton Skyes a visitor to the church in 1908.  The Alter, the Font, the Lectern and the Pulpit are made of local marble.  The Apse windows are in stained glass, the subject being “the good shepherd” and the side windows are to the memory of Gen W.H. Beynon.

The church is owned and managed by the Diocese of Rajasthan, Church of North India which is one of the three non-catholic mainline denominations. The building is kept in good condition and open to visitors throughout the year. Regular Holy Communion worship in English language lasting one and a half hours takes place every Sunday morning at 8:30 am during summers and 9:00 am during winters. All are welcome to participate.

Friday, 10 February 2017

Intellectual Property Rights (IPR) Relevance for Indian Micro Small & Medium Enterprises (MSMEs)

A background note for the IPR seminar by Federation of Indian Chambers of Commerce & Industry (FICCI)and the Controller General of Patents, Designs & Trade Marks  9-10 February 2017 Jaipur, India By Ajay Singha

Intellectual Property is the property which has been created by exercise of intellectual faculty and is the result of a person’s intellectual creation. Thus IP refers to creations of mind such as inventions, designs for industrial articles, literary, artistic work and symbols which are ultimately used in business and commerce. Intellectual Property rights allow the creators or owners to reap the benefits of their works when these are exploited commercially. These rights are governed in accordance with the provisions of corresponding legislation and reward creativity & human endeavor which fuel the progress of humankind. IP is the exclusive right given for a specific period of time to an individual or entity over a creation of the mind. The successful commercialization of an idea or invention is the true success for an entrepreneur. The IP owner therefore has the right to exclude others as far as commercialization aspect is concerned. IP can be classified into following:
·        Patent
·        Industrial Design
·        Trade Mark
·        Copyright
·        Geographical Indications
·        Lay out designs of integrated circuits

The Global Intellectual Property Center (GIPC) Index 2016 ranks India a poor 37th out of 38 economies in terms of Intellectual Property Rights IPR compliance. The Index is based on 30 criteria critical to innovation including patent, copyright and trademark protections, enforcement, and engagement in international treaties. India’s overall poor score reflects that the country’s IP requirements remain outside established international best practices. The Index found that countries with weak IP systems are less likely to attract investment, stimulate innovation, and foster the creation of knowledge-based economies. With the release of India’s draft national IPR policy, the stage has been set to embrace this solution.

Intellectual Property Rights and related issues are of core business value to start ups and new business across sectors in India.  IP rights are private in nature and to that extent it is the duty of IP owners to protect their rights and ensure implementation of related laws. Owners of small and medium sized business must gain a good understanding of IPR in order to protect their IP from replication, copying or infringement of any kind. On the other hand the same businessman needs to proactively defend any allegations of infringement by other claimants of an Intellectual Property. Industry bodies like FICCI serve trade and business by creating awareness of emerging concepts, terminologies, laws and trends relating to IP. Indian laws are not only compliant but go beyond expectations of TRIPS (Trade Related Aspects of Intellectual Property Rights) as governed by WTO. The Indian government’s increased commitment to IP is reflected in establishment of the Intellectual Property Right (IPR) Think Tank in November 2014, which helped put together the draft of a National IPR policy, and subsequently the announcement of India’s first National IPR Policy by the Government of India in May 2016.

There are provisions for the protection of quasi rights under TRIPS like:
·        Confidential information
·        Know how
·        Trade secrets
·        Reputation
·        Brand loyalty
·        Goodwill
·        Data exclusivity
·        Market intelligence
·        Test methods
·        Customer lists
·        Management practices
·        In-house standards and specifications

As far as Patents are concerned the mere discovery of a new property or new form of a substance is not sufficient. Similarly, just a rearrangement or admixture is not sufficient to claim patent and the product or procedure must be inventive. Registering a patent is a long drawn and complicated process, best handled by trained professionals.

Industrial designs relate to the aesthetic features of a product. The existence of a product is essential to creating an industrial design and it shapes the form of a new product to differentiate it from other products. Companies regularly launch new designs and new models of their products and industrial designs contribute to the branding of a company. Orchid Brooch of Tiffany was registered in 1889 and Bunny Bangle by Daniel Brush. A non-registered industrial design may be enforceable for three years and registration is given for very long periods of time depending on laws governing registration which can be licensed or sold by the owners.  

Under Trade Marks the signs, symbols, logos, word mark are included. The mark must be graphically represented and distinctive. It cannot be similar to other known and registered trade-marks.

Copyright is a right granted on the creation of a literary artistic work like novels, poems, plays, musical compositions, paintings, drawings and photographs. After the IT revolution related subjects have taken center stage for copyrights. Computer programs, Database, Recordings, Internet and Web content, Cable TV content require copyright. While using the above, one must take prior permission, acknowledge the source and quote the original creator.

Geographical Indications (GI) is a unique TRIPS compliant feature increasingly used in India. European countries have successfully used this for wines, cheese, alcoholic drinks and related food products. Now a product in India can be registered under the Geographical Indication of Goods Act if it conveys an assurance of quality and distinctiveness based on its origin. The product then commands a premium and bears a distinct character, taste, recall and other distinguishing features. Recent GI registrations include:

·        Sanganer hand block printing
·        Bikaner bhujiya
·        Kathputli puppets
·        Bagru hand block printing
·        Jaipur jooti
·        Malela clay arts
·        Agra Petha
·        Goa Feni
·        Tirupati Ladoo

These are examples of products successfully registered under the act as having a unique geographical indication (GI). Each registration is in favor of a group or association which then becomes a collective right of the people or units located and residing in that geographical area to manufacture freely only in the specified area.

Layout designs in integrated circuits have been getting copyright-like registrations by several countries for periods of 10 to 15 years. This is possible as sufficient flexibility is given under TRIPS for this purpose. Due to the functional nature of the chip the design cannot be effectively protected exclusively by patent or copyright laws. An emerging problem area is electronics, particularly telecom. Indian companies sometimes do not pay heed to license technologies, leading to legal disputes with patent holders. There is also a consistent failure by Indian firms to carry our research and development (R&D) that would create intellectual property. Trade, tariff and tax policies that discourage genuine domestic value addition and incentivise masquerading trade as manufacture, are to blame as well.

Compulsory licensing under the TRIPS Agreement, relate to the use of a patent without the authorization of the right-holder. It sets out detailed conditions that must be respected in the granting of compulsory licences by Member states. Member governments are not obliged to apply certain of these conditions in circumstances where the compulsory licence is granted "to remedy a practice determined after judicial or administrative process to be anti-competitive." This has happened in India in the pharmaceuticals sector. The Indian company was able to show that they made efforts in vain to obtain voluntary authorization from the rights holder on reasonable terms. Authorization for use of a patent under a “compulsory licence” is predominantly for the supply of the domestic market where authorities consider the need to correct anti-competitive practices.

For Make in India to be successful manufacturing has to go beyond simple assembly of complex parts produced elsewhere. India must focus on domestic R&D and creation of intellectual property within the country. Nations which did not put in the hard slog required to create intellectual property end up doing to IP owners what Robin Hood did to the rich. This is neither legal nor sustainable in the long run even by third world standards.  Indian MSMEs are advised to understand and benefit from IP laws and protect their rights in future. The new Indian IPR policy provides exemptions from infringement for research on patents. This is as important as granting exclusive rights to inventors. While exclusivity may encourage innovation exemptions for research encourages improvement, testing and innovation in the use of patented inventions. This will be particularly helpful for MSMEs to develop targeted technologies in a competitive environment. Additionally procedures have been revamped, digitized and made transparent. Out of the box solutions are being implemented to expedite decision making. In order to conduct fair and global level search before granting IPR protection India has joined agencies like the International Searching Authority and International Preliminary Examining Authority.

FICCI has been playing an active role in generating awareness on IP, besides building capacity of enforcement agencies, across the country. Besides, FICCI carries out extensive research and proposes customized solutions on IP issues which cater to the needs of Indian Industry and its growth. The overall objective is to promote innovation and IP culture for national development; sensitize industry, enforcement agencies, judiciary and other stakeholders about the significance of IP protection & its effective enforcement and in building their capacities.

The author is former Executive Director of the American Chamber of Commerce in India, Member Transparency International (India) and Honorary Advisor to FICCI, Rajasthan. Views expressed are personal.  

Monday, 6 February 2017

Foreign Corrupt Practices Act: Relevance for India

FCPA and it's relevance for India
Ajay Singha

The Foreign Corrupt Practices Act FCPA is a US legislation which concerns itself with US MNCs operating overseas. The principal objective of FCPA is to prohibit US corporations and their associates from bribing and influencing foreign government officials to further their business interests. The legislation is comprehensive and well thought through leaving little scope for misadventure by creative executives heading corrupt organisations. Private sector and best in league talent is actively engaged by enforcement agencies and NGOs engaged in prevention of corruption. US enforcement agencies and judiciary maintain an upward curve and a good track record of implementing this law, following up on prosecution and imposing penalties very often in the shape of amicable settlements. Heavy penalties wound corrupt organisations financially without destroying their ability to remain profitable, generate wealth and create employment.

There is increased co-ordination between US and Indian authorities to follow up on offenders covered under the US FCPA. The number of defaults by India based US MNCs is much lower as compared to other Asian nations.  China is way ahead of all other nations in the number of infringements and misdemeanours and clearly dominates the 2016 list of infringers. India has meanwhile tightened the screws on corruption and related practices. There was a general feeling of dejavu as the Indian government once again increased the stakes in this cat and mouse game of catching the corrupt.

In 2016 around 27 MNCs paid more than USD 2 Billion in fines. It was the biggest enforcement year both in terms of number of enforcements and the amount paid in reaching settlement. In addition to these 15 individuals settled FCPA charges brought about by SEC the US Securities and Exchange Commission.In 2015 around 11 companies had paid USD 133 Million to resolve FCPA cases.
Novartis paid USD 25 Million to resolve FCPA charges in a case where the company had bribed doctors in China and booked the expenses as travel, entertainment and conferences. Anhauser Busch paid USD 6 Million after impeding a whistle blower who reported the case. They paid bribes through third party representatives in India to make improper payments to government officials. In Indiathey entered into separation agreements to further deter employees from reporting the violations and avoid prosecution.

In 2016 China dominated FCPA violations and resultant prosecution. UNS MNCs GSK, PTC, JP Morgan, General Cables, SciClone, Novartis, Johnson Controls etc. were involved. Novartis paid 150,000 to a Chinese charity to influence a communist party official for favourablyinfluencing a business infringement investigation by Chine government officials. In individual cases John McClung and Richard Hirsch of Roland Berger were fined and sentenced to two years’ probation for bribing Indian officials and others for winning contracts in India. Harris Corp and Cisco went for voluntary disclosure and self-investigation resulting in non-prosecution agreements with DOJ US Department of Justice and SEC.

Increasingly foreign nationals who may not be US citizens are being prosecuted as long as a connection is apparent between their role and the activities of the US MNC. Ignacio Plaza a Chilean, Yuan a Chinese, Dimitri a Russian were successfully prosecuted by US enforcement authorities and paid heavy fines to settle their FCPA violations. Charges against a German CEO of Siemens Argentina were dropped as the connect between him and the US business of the company could not be established. In 2014 one Subramaniam Krishnan of Digi International Inc. USA agreed to pay a fine and settle FCPA charges related to unauthorised travel and entertainment expenses. In 2014 IBM was warned and directed to enhance their FCPA training and awareness programs within the company.

Some big names in global business who have faced prosecution in the last few years have been Eli Lily, Allianz, Marubeni, Oracle, Pfizer, Tyco etc. It is relevant to note that all these companies have significant investments in India and in spite of heavy odds have managed to keep their records clean. In 2016 Cognizant reported conducting internal investigations immediately on suspecting non-compliance in India. They offered full co-operation to US enforcement agencies and the matter is under scrutiny. In 2012 Qualcom paid USD 2 Million fine to the US Security Exchange Commission for settling charges for knowingly maintaining a slush fund in India to pay bribes to Indian officials for their business in India.

US and European MNCs operating in India ramped up their efforts in imparting education to key employees on various provisions of FCPA. The training elaborates on what kind of actions amount to infringement, care is taken to drive home the message that even personal contribution or gifts paid from salaries of an employee or corruption money routed through agents and service providers amounts to a serious infringement. Increasingly the Indian suppliers are sensitised on the subject and warned of immediate suspension of their business with the MNC if any misdemeanour is discovered. 

The world community is still far away from bringing corruption under control but the effort is reflected in the limited number of prosecutions and cases involving India reported under the FCPA laws. Several MNCs in China, other South Asian nations, Africa and Latin America continue to face prosecution under provisions of the FCPA.

If an Indian company gets involved in an FCPA misadventure it must disclose the key features of the investigation while bidding for any US governmental business. MNCs now ask for undertakings of FCPA compliance and a reasonable understanding of the relevant features of FCPA and related legislation. In case a prospective business partner has been subject to an investigation the details need to be fully disclosed before commencing regular business.

In 2008 Siemens paid a USD 800 Million and Halliburton paid USD 600 Million fine to settle their cases. There was little correlation between the huge fine paid and amount bribed thus making it immensely unprofitable for such companies to engage in future bribery and corruption.
Another impact is on senior executives who get embroiled in a FCPA investigation. As global job seekers these executives stand to lose a lot in terms of credibility. This has had a positive impact on top executive talent in India which is ambitious and would not like infringements to be associated with their names. In today’s age of transparency and information exchange the hiring MNCs will invariably come to know of the executive’s involvement in an alleged misdemeanour and refuse promotion or even employment. Voluntarily suppressing information of involvement in FCPA investigations will expose executives to prosecution, dismissal and bleak career perspectives. 

IT MNCs in India must deal with a plethora of challenges for securing Indian government business. Though financially not very profitable government business brings the foreign company in proximity of key decision makers. Land acquisition is crucial for large US MNC projects. This forces companies to interface with a multitude of government agencies with multiple jurisdictional issues. Import and export of IT leads to interaction with Customs and other taxation agencies. This is another area for bribery and corruption. US MNCs employ large number of people spread across locations and the complex employment guidelines and related compliance result in submission of papers at several levels in government agencies. Inspection of imported hardware and permission to import on time without penalties leads to demands and possible infringement of anti-corruption laws.

The US SEC has identified a framework and measures for evaluating cooperation by companies. Self-policing prior to the discovery of a misconduct, including establishing effective compliance procedures can be used to defend prosecution and projected as good intention on part of the defaulting company. Similarly, self-reporting of misconduct when it is discovered, including conducting a thorough review of the nature, extent, origins and consequences of the misconduct can be used to project good intention of the management. Promptly disclosing the misconduct to US regulatory agencies is also an acceptable action for good intention. Appropriately disciplining wrongdoers, improving internal controls to prevent recurrence of the misconduct and appropriately compensating those adversely affected by the investigation are some of the ongoing positive measures undertaken by companies. 

Cooperation with law enforcement authorities and providing all information relevant to the underlying violations can prevent the harshest provisions from being imposed on a defaulter.FCPA enforcement officials often examine what steps the corporation has undertaken in terms of educating their employees and business associates on various FCPA provisions and the implications of default. It is therefore imperative that Indian companies engaged in international business must sensitise senior and mid management on these issues and encourage them to follow sustainable business practices.The author is former Executive Director of the American Chamber of Commerce in India and Honorary Advisor FICCI Rajasthan, India. Views expressed are personal. January 2017