Database

According to the Copyright Act only actions related to fair dealing for the purpose of private use or reporting current events do not constitute an infringement of copyright.

Based on complaints made by Micromax and Intex, Ericsson is under a fully-fledged investigation on its practices. The Competition Commission of India (CCI) has adjudicated on issues involving Standard Essential Patents (SEPs). It has given a preliminary categorical view that royalty calculation based on the entire value of a product using SEPs is unfair. While this preliminary decision does not appear to be an attempt to dilute the Internet Protocol rights of foreign players in India, it signals the direction that the competition regulator wishes to take.

In India, applications for copyright, trademark and patents can be filed online, design applications can only be filed in person. Moreover, applicants that do not have a registered place of business in India are required to file applications through an Indian attorney or agent.

Legal injunctions in India have targeted both domestic and foreign companies. For example, Ericsson has sued Micromax (India) and Intex Technologies (India) seeking royalty on some of its patent technology used in mobile phones sold by these firms. The company has also sued Xiaomi (China) in India over alleged patent infringement.

Foreign companies (including those relating to B2B, B2C ecommerce, data interchange and other digital supply transactions, web based marketing, database services, online services such as telemarketing, telecommuting, telemedicine, education and information research and all related data communication services) even when not incorporated in India should register in India according to section 2(42) of the new Companies Act of 2013 when they are engaged in business in the country.

Consolidated Foreign Direct Investment (FDI) Policy Circular 2014, foreign direct investment in telecom services (fixed, mobile and internet) is subject to observance of licensing and security conditions by licensee as well as investors.

There are restrictions to foreign investment on cross-border mergers and acquisitions. According to section 6.2. of the Consolidated Foreign Direct Investment (FDI) Policy Circular 2014, government approval is required in cases where the control of an Indian company related to a sector/activity with cap is transferred on to a non-resident entity as a result of merger/de-merger or acquisition.

According to section 6.2. of the Consolidated Foreign Direct Investment (FDI) Policy Circular 2014, foreign investment in India is subject to approval depending on security conditions. Furthermore, there are various reports on tougher screening and review procedures regarding Chinese investments. Additionally, Indian carriers, which need to get security clearance from the Ministry of Home Affairs before they import equipment, have been denied to acquire equipment from Chinese manufactures (i.e. Huawei Technologies) due to national security concerns (see chapter standards for more information).

India applies a residency requirement for the members of the board of directors. Art. 149(3) of the 2013 Companies Act requires every company to have at least one director who has stayed in India for a total period of not less than 182 days in the previous calendar year.

India's policy on foreign investment permits FDI up to 100% in e-commerce activities, but the policy applies only to companies engaged in B2B e-commerce. B2C retail trading, in any form by means of e-commerce, is not permissible for companies with FDI and engaged in the activity of single brand retail trading or multi-brand retail trading. Exceptions were introduced in 2015 for single brand retailers that meet certain conditions, including the operation of physical stores in India. This narrow exception limits the ability of the majority of potential B2C electronic commerce foreign investors to access the Indian market. Additionally, in March 2016, the Indian government clarified that B2B e-commerce must not have more than one vendor account for more than 25% of sales, and must not indirectly or directly influence the sale price of goods sold.

India applies some limits on foreign direct investment on selected telecommunications, audiovisual and mobile broadcasting services. For example, India limits foreign ownership to mobile TV (broadcasting services), where FDI is capped at 74%.

Furthermore, a report by the US Information Technology and Innovation Foundation (ITIF) claims that foreign investment limits remain across several Indian telecommunications sectors. India limits foreign direct investment in the following audiovisual sectors: cable news (49%), FM radio (20%), head-end in the sky (74%), direct-to-home (DTH) broadcasting (49%), teleports (49%) news broadcasting (26%) and newspapers (26%).

The Indian government adopted a formal preference for open-source software for e-government procurement opportunities related to its digital agenda. The policy is reported to be one of the most far-reaching and restrictive preference schemes that has been implemented to date.

India’s policy on government procurement of standards for e-Governance gives preference to the selection of royalty-free standards. India’s Ministry of Communications and Information Technology formally established a “Policy on Open Standards for e-Governance” on November 2010. The policy was intended to serve as a framework for selecting standards for the hardware and software underlying e-Governance systems within India.

Another distinguishing feature of the policy is the requirement for a “single” standard for each technology domain, which also provides for exceptions allowing for multiple standards in a technology area if technically justified or in the public interest.

In addition to the intellectual property rights requirements, the policy identifies other mandatory characteristics for a standard adopted in e-Governance infrastructures. The documentation of the standard should be available for free or for a nominal fee. The standard should be maintained by a non-profit organization with an open and participatory development process. The policy also specifies that the standard should be a technology-neutral specification. The term “technology neutral” is explained as platform independence, with platform defined as an operating system, type of hardware, or transmission device. The final mandatory characteristic for a standard to be considered open is that it should enable local support, including being accessible in all Indian official languages.

The intellectual property requirement that India places on standards used in e-Governance systems states that patent claims necessary to implement the identified standard shall be made available on a royalty-free basis for the life time of the standard. There are exceptions if there are no royalty-free standards available for a domain.

India is currently only an observer to the WTO Agreement on Government Procurement.