Copyright war for ‘Sherlock Holmes’!

For a person, irrespective of whether he is related or non-related to law, ‘Sherlock Homes’ is not an unfamiliar character. Being conceived by Sir Arthur Conan Doyle and first appearing in the year 1887 (A Study in Scarlet), the characters of Sherlock Holmes and his friend, Dr. John Watson, have made a distinct mark in novels, short stories, cinema, TV series etc.

(Image Source: BBC America)

Recently, a U.S. court, while delivering a ‘declaratory judgment’, has held that both the characters, Sherlock Holmes and Dr. John Watson, are among those elements of Doyle’s works which no longer enjoy copyright protection in United States. The action was brought by Leslie S. Klinger against Conan Doyle Estate Ltd. Klinger had claimed that ‘various characters, character traits and other story elements from Sir Arthur Conan Doyle’s Sherlock Holmes stories are free for the public to copy’. A large number of Doyle’s works (published prior to 1923), which consists of four novels and forty-six short stories out of a total of fifty-six, are now in public domain and no longer enjoy copyright protection. However, some of his works, i.e., ten short stories or ‘Ten Stories’ (published post-1923), still enjoy copyright protection.

Direct Selling Industry in India: Legal Issues and Challenges

Last month, I was reading a news-report wherein it was mentioned that the direct selling sector has registered a growth of 12.2% in financial year 2012-13. I was not surprised. Having spent quite some time in reading about the sector, I was sure that direct selling industry has a promising future. But then, there was a question that I asked to myself - whether there is a suitable legal regime which can protect the continuous growth of direct selling industry in India? To answer this question effectively, both for me and readers, I decided to write this post.

I will try to explain following key points pertaining to the existence of direct selling industry:

(i)            What actually a ‘Direct Selling’ Industry is? How is it different from other modes of selling?

(ii)          Whether Indian legal regime protects direct selling industry? What are the legal issues and challenges?

(iii)         What are the solutions which have until now been offered?

What is Direct Selling?

According to Black’s Law Dictionary (9^th Ed.), ‘direct’ means straight, undeviating etc. and ‘sell’ means to transfer (property) by sale.[1]In other words, a sale, which is channelled through a straight or undeviating medium, can be considered as direct selling. For instance, presence of a buyer and a seller would be sufficient to constitute this undeviating sale or direct selling. The presence of ordinary retail shop, which one usually comes across, is not required. In retail trading, retail shop act as a part of supply chain between the seller and the buyer and is distinct from direct selling.

For the sake of convenience, let me now refer to the explanation as provided by Indian Direct Selling Association (“IDSA”), an autonomous and self-regulatory body for direct selling industry in India. According to IDSA, ‘Direct Selling’ can be understood as: