HND in Business Management

HND in Business Management

1) MAIN PRINCIPLES THAT AFFECT THE LEGAL RELATIONSHIP BETWEEN BUSINESS ORGANIZATIONS AND THEIR CONSUMERS:-

The primary way to meet consumers growing information is to build and achieve consumer confidence and responsibility. The public relations profession should consider the whole system of EC directives and regulations covering consumer relations.

One of the main issue concerning is health and safety information and consumer representation. Right balanced should be built between the interest of the consumers and suppliers.

For Consumer protection and information policy, five basic rights were established in 1975 by Council of Ministers.

1. The right to protection of health and safety, because goods and services must not present a risk under normal condition of use.

2. The right to protection of economic interest, because the purchaser must be protected against abusive practice of the seller such as misleading advertising, unfair contract clauses, etc.

3. The right to redress, because consumers should be advised and helped in the case of unsatisfactory products and services and swift redress for any damages suffered.

4. The right of information and education, because consumers should be in position to make a choice based on full information.

5. The right of representation, because consumer organizations should be consulted on all proposed legislation affecting consumer interest.

Many community directive and regulations have adopted general measures and included into legislation such as:

Foodstuff: Lists of items and clear fact have been drawn up for preservatives used in foodstuffs; manufacture and trade description of many food products are also considered.

Presentation and labeling: Specify rules to be signify on the packaging, such as quality of ingredients, food relating to diet, showing the amount of calories it produce with other nutritional information labeled.

Misleading advertising: If a consumer experience that he or she has been misled by an advertising claim or presentation, legal action against the manufacturer is possible.

Product liability: Regulation also states that manufacturers are responsible for any damage their products may cause to the consumer. The burden of proof will lie with the producer.

Medicinal products: standardized terms on testing, evaluation, authorization, labeling and patent rights have been determined.

Door steps sales: purchasers have a week cooling off period in the case of contracts negotiated away from the salesmen’s business premises; the salesman is required to inform the consumer in writing of above right of cancellation.

Information system: If authority is determine that a product has or could cause damage to health and is restricting its sale; all will be informed so appropriate action can be taken.

Other regulation cover issues, such as; package tours, rights of air travelers, safety of toys, consumer credit.

Therefore, a standardized level of protection of consumer rights has been established and at the same time many trade barrier have been abolished through standards and regulations.

EXAMPLES:-

In 1981 Council of Ministers implemented a consumer programme to cover the period until 1986. This pressurizes the importance of the price and quality ratio to consumers and tackled the problems of the services sector. Special meeting of Ministers was held, to discuss the consumer policy, in 1983.

GENERAL PROFESSIONAL CONDUCT:

1. Consumer relations specialist must acknowledge the basic consumer rights to information, to audience, to freedom of choice and to safety.

2. Consumer relations specialist must show intellectual reliability, loyalty and honesty towards their company and consumers. The specialist must not use, which to their knowledge, is false or misleading. The specialist must avoid the use of unsuitable practices and methods with the intellectual reliability, loyalty and honesty. (Clause 3 CERP Code of Conduct).

3. Consumer relations programmes must be carried out openly: they must be readily identifiable, bear a clear indication of their origin and must not be handled to mislead third parties. (Clause 4 CERP Code of Conduct)

4. Consumer relations specialist must not reveal any confidential information received from their clients or employees and make no use of such information without authorization. (Clause 7 CERP Code of Conduct)

5. Considering that a consumer is an individual or a group offered or sold products or services for their own satisfaction, a consumer relations specialist must grant to the same individual or group all after sales services that they may require.

6. A constant concern on the part of the consumer relations specialist with consumer rights to information and moreover the duty to provide information within the limits of professional confidence must be considered as a basic responsibility. (Clause 14 CERP Code of Conduct)

7. Information must be given clearly making sure of the consumer’s education and cultural background and their knowledge on products and service and so forth.

8. Consumers pay no cost for the implementation of consumer relations programme.

9. Consumers information cannot be used for any market research, promotion or direct marketing without the authority of the consumer.

10. If the use of a product or a service requires proper warnings, it is the duty of consumer relations specialist to disclose it openly.

11. Any attempt to deceive consumer opinion or its representatives is forbidden. (Clause 15 CERP Code of Conduct)

12. No payment or gift shall be offered or given to any person having an interest in a Consumer group or Association for the purpose of influencing any act or decision of such group or association. 1 2 15

2)LEGAL RULES APPLICABLE TO CONSUMER CREDIT AGREEMENTS AND AGENCY:

Credit Bureaus are private enterprises or are operated on a cooperative basis by the merchants. Users of the service pay a fee and receive information from different sources

a.) If a credit agreement is signed and consumer wants to cancel it. It can only be done if the consumer signed the agreement in his own home. If the agreement was dealt over the phone or at the seller’s shop or office, the consumer will not be able to cancel the agreement

b.) Seller will have to send a written notice telling consumer on how to cancel the agreement. Consumer then must send a notice to the address given on the notice. Consumer will be entitled to the return of any deposit paid or goods traded in part exchange if you cancel the agreement in time.

c.) A creditor, cannot demand early payment, try to get the goods back or end the agreement without first serving a written notice on you giving you 7 days notice of their intention to take such action.

d.) If the consumer have paid a third of the total price of the goods under HP agreement then the creditor cannot take the goods back without a court order. Consumer can ask the court to suspend the Return Order and accept your offer to pay the rest of amount by installments.

e.) If creditor takes back the goods without the court order, consumer can sue the creditor and claim back all the money they paid under the agreement. The creditor cannot enter your premises to retrieve the goods without your permission.

f.) If consumer finds an agreement unfair then the consumer can appeal to the court and ask them to amend the agreement or place a new one. The court will only do this if the agreement is unreasonable or corrupt.

g.) A seller can be the person who grants consumer credit or they may arrange for consumer to get credit from a 3rd party or that 3rd party may arrange to supply the goods to consumer. Consumer protection is that consumer can choose who to sue.

h.) Consumer can either sue the seller or the provider of the credit or both. This helps consumer because if the seller goes bust consumer can try and get their money from the credit provider instead

i.) Consumer must be given certain written information about the credit agreement which must include;

• The total charge for credit.

• The Annual Percentage Rate (APR).

• The cash price for the goods.

EXAMPLE:-

A Nigerian letter fraud, in which a letter is mailed form Nigeria, offers the recipient the opportunity to share in a percentage of millions of dollars that the author, a self-proclaimed government official, is trying to transfer illegally out of Nigeria. The recipient is encouraged to send information to the author, such as bank name and account numbers and other information. Some of the letters has been received via E-mail through the Internet. The scheme relies on convincing a willing victim to send money to the author of the letter in Nigeria in several installments.

Some Tips to Avoid Nigerian Letter or “419” Fraud:

Þ If you receive a letter from Nigeria asking you to send personal or banking information, do not reply in any manner. Send the letter to the U.S. Secret Service, your local FBI office, or the U.S. Postal Inspection Service.

Þ If you know someone who is corresponding in one of these schemes, encourage that person to contact the FBI or the U.S. Secret Service as soon as possible.

Þ Be careful of individuals representing themselves as Nigerian or foreign government officials asking for your help in placing large sums of money in overseas bank accounts.

Þ Do not believe the promise of large sums of money for your cooperation.

Þ Guard your account information carefully. 2 3 4 5 15

3) LEGAL RULES RELATING TO MONOPOLIES, MERGERS AND ANTICOMPETETIVE PRACTICES USING ‘MICROSOFT’S BIG PATENT VERDICT OVERTURNED CASE IN 2009′:

§ 2 is not violated only by having a monopoly. § 2 is violated by a firm only when it acquires or maintains, or attempt to do so by engaging in “exclusionary conduct” which is different from growth or development as a result of engaging in a superior product, business expertise, or other historical event.

After conceding that Microsoft had monopoly powers, the District court came to the conclusion that Microsoft had violated § 2 by engaging in a number of “exclusionary acts”, with a view to preventing the distribution and use of similar products which might threaten their own monopoly. The District Court held Microsoft liable for:

(1) The way in which it integrated IE into Windows.

(2) Its various dealings with Original Equipment Manufacturers (“OEMs”), Internet Access Providers (“IAPs”), Internet Content Providers (“ICPs”), Independent Software Vendors (“ISVs”), and Apple Computer.

(3) Its efforts to contain and to subvert Java technologies; and

(4) Its course of conduct as a whole. Upon appeal, Microsoft argues that it did not engage in any exclusionary conduct.

It is not easy to make out whether an act is “exclusionary” or a result of vigorous competition because there are many numbers of reasons for illegal exclusion. An antitrust court is faced with the challenge to lay down principles to distinguish “exclusionary acts” which may have the effect of reducing social welfare, and competitive acts, which may increase it.

From a century of case law on monopolization under § 2, however, several principles do emerge.

First, to be condemned as exclusionary, a monopolist’s act must have an anticompetitive effect. That is, it must harm the competitive process and thereby harm consumers. In contrast, harm to one or more competitors will not suffice.

Second, the plaintiff, on whom the burden of proof of course rests.

Third, if a plaintiff successfully establishes a prima facie case under § 2 by demonstrating anticompetitive effect, then the monopolist may proffer a “precompetitive justification” for its conduct.

Fourth, if the monopolist’s precompetitive justification stands unrequited, then the plaintiff must demonstrate that the anticompetitive harm of the conduct outweighs the pro- competitive benefit.

As the Fifth Circuit more recently explained, “[i]t is clear … that the analysis under section 2 is similar to that under section 1 regardless whether the rule of reason label is applied.

Finally, in conclusion, while trying to determine whether the monopolist’s has harmed competition and has therefore committed an act of “exclusionary” purpose of § 2, our focus should be on the effect of that conduct and not on the motive behind it. Evidence of the monopolist’s motive is relevant to understand the likely effect of the monopolist’s conduct. 6 7 8 9 10

4) KEY PROVISIONS RELATING TO INTELLECTUAL PROPERTY RIGHTS AND INTELLECTUAL PROPERTIES ON THE WORLDWIDE WEB:

Intellectual Property is defined as legal rights that result form intellectual activity. Intellectual activity may include any action from industrial, scientific, literary and artistic field. India Intellectual properties comes into 4 major buckets; Copy Right, Patent, Trademark and Design Protection.

(IPR) Intellectual Property Rights of computer software is covered under the Copyright Law, which is protected under the provision of Indian Copyright Act 1957. Major changes came into effect from 10 May 1995 to Indian Copyright Law, which made the Indian Copyright Law the toughest in the world. This was the first time; the Copyright Law was clearly explained in India: The rights of a copyright holder Position on rentals of software the rights of the user to make backup copies.

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Most of the software is easy to copy, so the Copyright Act was needed. According to section 14 of the Act, it is illegal to make and distribute copies of copyrighted software without the proper permission of the authority. A Criminal and Civil action can be organized for restriction, actual damage or legal damages per breach. Heavy punishment and fines can also be applied for violation of software copyright. Section 63 B orders a minimum jail term of 7 days, which can be extended up to 3 years.

SUMMARY OF INDIAN GOVERNMENT INITIATIVES TO PROTECT IPR:

Indian government began to take different steps towards Intellectual Properties Rights Protection. The Government has taken number of measures and strengthened the enforcement of Copyright Law. A summary of these measures is given below:

1. A Handbook of Copyright Law has brought out by the Government to create awareness of copyright laws amongst professionals, members of the public etc. Handbooks are free of cost and have been distributed to the stat and central government officials.

2. National Police Academy and National Academy of Customs and Narcotics developed several training programs on copyright laws for the police and custom officers.

3. The Department of Education, Ministry of Human Resource Development, Government of India has begun taking several measures for strengthening the enforcement of copyrights that include Copyright Enforcement Advisory Council (CEAC). Separate cells have been created at Police Headquarters, organizations of seminar and workshops are to cerate greater awareness of copyright laws among the enforcement personnel and the general public.

4. Special cells have been set up in 23 states and union Territories for copyright enforcement. These states are Andhra Pradesh, Assam, Andaman & Nicobar Islands, Chandigarh, Dadra & Nagar Haveli, Daman & Diu, Delhi, Goa, Gujarat, Haryana, Himachal Pradesh, Jammu & Kashmir, Karnataka, Kerala, Madhya Pradesh, Meghalaya, Orissa, Pondicherry, Punjab, Sikkim, Tamil Nadu, Tripura and West Bengal.

5. The Government began to develop seminars/ workshops on copyright issues. These seminars include enforcement personnel and representatives of industry organizations. Government started to take number of measures and therefore more activity has been found in the enforcement of copyright laws in the country.

BEST PRACTICES TO MINIMIZE THE RISK OF INTELLECTUAL PROPERTY LOSS:

The following Best Practices will help minimize the risk of losing Intellectual Property in conducting business offshore:

1. Understand the Intellectual Property rights: To protect the Intellectual Property the first and foremost step is to get a general idea of different plan and laws by the offshore country.

2. Set up an Internal Intellectual Property protection team: An Internal intellectual team should be organized, whose responsibility is to protect ongoing business and to monitor the Intellectual properties, violations etc.

3. Examine the work entity that can be copyrighted/ patented: Examine the work individually that can be copyrighted/ patented, and it is important to make sure that such protection will be valid in the country of offshore activity/ development.

4. Offshore vendor history: Extreme caution must be taken when company is entering into a vender relationship with an offshore entity. Company must understand the vendor’s history with respect to any Intellectual property violations.

5. Define IP violation clause: Define a separate Intellectual Property Violation clause and the consequences of Intellectual property violation, when signing a deal with the offshore vendor. Some companies sign the deal with the onsite entity of the offshore vendor, thin gives them more advantage to take any legal actions.

6. Seek a reference check for all the team members: It is important to check the offshore team and to seek the appropriate reference to make sure there is no IP violation case history behind the individual.

7. Pay Attention to use of unauthorized software/third party products: Be careful of using unauthorized software or third party products. Unlicensed software or products shouldn’t be used by both onsite and the offshore team.

8. Enforce Central Repository: Enforce a central storage area for all the code and documents can not only improve the overall efficiency, and will also avoid numerous placeholders for critical documents and code.

9. Perform Periodic IP Audit: An audit should examine any new work that can be copyrighted and remove all unauthorized software/ product and allot suitable rights to the documents and update any changes to ownership to patents.

10. Enforce the use of References: Make sure to give appropriate references and credits to the owner of the work, this will raise the standards of the employees to acknowledge and respect and protect other people’s work.

11. Develop Awareness: Protecting the Intellectual property can be greatly enhanced if all the employees of the company and the offshore team are on the same page as to how much attention the company pays to protect Intellectual Properties.

Case Studies Related to Indian IPR Protection

In Bangalore police arrested three software engineers for copying software from a company they were working for. The accused engineers had started a new company called Ample Wave Communication Network. They had illegally copied the code of the company’s software and were using at their company. Police seized four computers, one server and one laptop from accused. (source: DH News Service, Bangalore)

Intellectual Property Protection in India

Shekhar Verma a former Employee of Mumbai-based Geometric Software Solutions Company was accused of stealing $60 million worth of source code of a software product of Geometric Software’s US-based client, Solid Works and trying to sell them to other companies for a fortune. The American firm has the exclusive rights over the software. (Source Rediff.com)

Conclusion

Loss of intellectual property can cause companies to lose their position in the market. Understanding the country’s IP rights and following the best practices can reduce the risk of loosing the company’s Intellectual property. Commitment to protect the Intellectual property should be developed and look after in all organizations of a company. 11 12 13

Refernces:

1. http://www.cerp.org/Default.asp

2. Geraint Howells and Steve Weatherwill, Consumer Protection Law (Markets and the law), 2nd edition 2005, ISBN: 978-0754623380

3. Teri B. Clark, The Complete Personal Finance Handbook; ISBN 13: 978-1601380470, published by Atlantic Publishing company

4. David Kelly, Business Law, 5th Edition, 2005, Cavendish Publishing, ISBN 13: 978-1859419625,

5. http://www.businesslink.gov.uk/bdotg/action/detail?type=RESOURCES&itemId=1073792330

6. Denis Keenan, Smith & Keenan’s Advanced Business Law. 11th Edition, 2000. ISBN 0 273 64601 X.

7. Geoffrey Morse, Charlesworth & Morse Company Law, 16th Edition, 1999/

8. Dave Needham, Business for Higher Awards, 1995. ISBN 0 435 285343

9. http://www.bloomberg.com/apps/news?pid=newsarchive&sid=ajwsdZdSECBw

10. http://www.newsrx.com

11. DH News Service, Bangalore

12. http://www.rediff.com/money/2002/aug/28cbi.htm

13. Birgitte Anderson, Intellectual Property Rights: Innovation, Governance, And the Institutional Environment. ISBN: 978 – 1845422691

14. M. Pugatch and Meir Perez, The International Political Economy of Intellectual Property Rights, 2004, Edward Elgar Publishing, ISBN: 978-1843767640

15. G.F. Woodroffe, Consumer Law & Practice, 2007, ISBN: 978-0421959507