For the purpose my
analysis, I tried searching images of Hon’ble Prime minister of India Mr.
Narendra Modi in Google. What I found is the current image which is used by
Reliance for its ad Jio is an image of September 05, 2015, almost a year back. Prime
Minister Narendra Modi, dressed in a blue jacket exactly that of the
advertisement on September 2nd 2016. The article titles as “Technology
with creative thinking can change lives: Prime Minister Narendra Modi”.
For the convenience, please find the following link.
 |
| Previously photo uploaded on Sep 05 2015 |
For the convenience, please find the following link.
Tough the ad states
that: “Our Prime Minister’s vision is inspiring vision of digital India is one such
movement, “Jio is a dedication to that Digital India dream of the Prime
Minister, his vision for the 1.2 billion people of India.” Though being a
lawyer, I completely understand that Prime Minister of India does not directly relate
nor promotes the company in any way. However, two questions arise in my mind.
First, whether a private company or public company for the purpose can use
images of Hon’ble prime minister of India in its advertisement. Secondly, if
there is a violation of copyright.
Though this act of Reliance
is criticized in the social media, let me analyze it from a legal perspective.
Section 3 of The
Emblems and Names (Prevention of Improper Use) Act, 1950(“EN Act”), no
person shall, except in such
cases and under such conditions as may be prescribed by the Central Government,
use, or continue to use, for the purpose
of any trade, business, calling or profession or in the title of any
patent, or in any trade mark or design, any
name or emblem specified in the Schedule or any colorable imitation thereof
without the previous permission of the Central Government or of such officer of
Government as may be authorized in this behalf by the Central Government.
(Emphasis provided)
For the purpose, 9A of
the Schedule states that: The name of the name or pictorial representation of
10 [Chaatrapati Shivaji Maharaj or] Mahatma Gandhi 11[or Pandit Jawahar Lal
Nehru], 12[Shrimati Indira Gandhi] or
the Prime Minister of India 1[except the pictorial use thereof on calendars
where only the name of the manufacturers and printers of the calendars are
given and the calendars are not used for advertising goods].] (Emphasis
provided)
Reading Section 3 of
the EN Act states that no person shall use or continued to use any name or
emblem specified in the schedule for the purpose of any trade, business or in
any intellectual property like patent, trade mark or design without prior
permission from the Central Government. Schedule 9A of the EN Act clearly includes
the name of Prime Minister of India. Reading
Section 3 along with the Schedule suggests that No one should use the name of Prime
Minister of India without prior permission from Central Government for the
purpose of any trade, business or in any intellectual property like patent,
trade mark or design. However, there is a clarification which provides that the
Image of Prime Minister of India can be used on the calendars where only name
of manufacturers and printers of the calendars are provided and the calendar is
not used for any advertising goods.
The penalty as
mentioned in the Section 5 of the EN Act states that, any person who
contravenes the provisions of section 3 shall be punishable with fine which may
extend to five hundred rupees.
Well, analyzing the
advertisement from the EN Act perspective, though it seems that Reliance
violated Section 3 of the EN Act. However, the clarification provided in the
Schedule stated that Image of Prime Minister of India can be used on the calendars
where only name of manufacturers and printers of the calendars are provided and
the calendar is not used for any advertising “goods”. It states that the name of the Prime Minister of India
cannot be used for any purpose of advertisement for any “goods”. The
advertisement of Reliance was for the purpose of “Services”, which may take
reliance out of the purview of the EN Act.
It is to be seen if the
Company have taken prior permission from the Central Government or have relied
upon the loophole provided in the EN Act or have considered and ready to pay
the penalty which is negligible.
Secondly, copyright holder of the image may consider options under Indian Copyright Act, 1957.
Comments are Welcome.
