Cyber Law & Intellectual Property Rights (CY-504 (A)) - Unit 5 Short Notes

UNIT 5: CYBER LAW & INTELLECTUAL PROPERTY RIGHTS

Based on analysis of RGPV past papers (Nov 2022 & Nov 2023).

I. FOUNDATIONAL LEGAL FRAMEWORKS & CONCEPTS

A. Information Technology Act, 2000 (ITA-2000)

• Salient Features & Objectives:

  • Provides legal recognition for electronic records and digital signatures.

  • Defines cyber crimes and prescribes penalties.

  • Regulates certifying authorities (CAs).

  • Amends existing laws (Indian Penal Code, Indian Evidence Act, etc.) to accommodate digital evidence.

• Key Provisions:

  • Section 3: Digital Signature – authentication of electronic records.

  • Section 10: Secure Electronic Records & Signatures.

  • Chapter IX: Penalties and adjudication for offences like hacking (Sec 66), publishing obscene information (Sec 67).

  • Chapter XI: Regulations for CAs and subscribers.

[!TIP] Exam Focus: ITA-2000 is the cornerstone. Be prepared to list at least 5 salient features and explain Sections 66, 67, and 43 (compensation for damage).

B. Indian Evidence Act, 1872 (in Digital Context)

• Main Features for Electronic Evidence:

  • Section 3: Definition of "evidence" now includes electronic records.

  • Section 65B: Admissibility of electronic records. Conditions:

    1. The computer was regularly used by a person with lawful control.

    2. The type of information was regularly fed into the computer.

    3. The computer was operating properly.

    4. The duplicate copy is a faithful reproduction.

  • Section 79A: Examiner of Electronic Evidence – Central/State Government may notify agencies/experts.

C. Indian Contract Act, 1872 (in Digital Context)

• Application to E-Contracts:

  • Offer & Acceptance: Can be communicated electronically (email, click-wrap).

  • Consideration: Must be lawful; can be digital.

  • Capacity & Consent: Same principles apply; must be free from coercion, fraud (Sec 13-19).

• Specific Focus: Section 22 – Effect of mistake as to law

  • Definition: A mistake as to a law in force in India does not render a contract voidable.

  • Mistake of foreign law is treated as a mistake of fact (can void contract).

  • Case Study: Satyabrata Ghose v. Mugneeram Bangur & Co. (1954) – Mistake regarding government land acquisition did not void contract as it was a mistake of law (Indian law). Contrast with Cooper v. Phibbs (1867) – Mistake of foreign law treated as mistake of fact.

D. Bankers' Books Evidence Act, 1891

• Purpose: To give legal sanctity to bankers' books as evidence in court.

• Recognition of Electronic Books: The Act was amended to include electronic records as "bankers' books."

• Important Aspects:

  • Section 2(1A): Defines "bankers' books" to include ledgers, cash books, etc., in electronic form.

  • Section 4: Certified copies of entries from bankers' books are prima facie evidence.

  • Section 4A: Court may order production of electronic records.

II. INTELLECTUAL PROPERTY RIGHTS (IPR) IN CYBER SPACE

A. Copyright Law

• When Infringement Occurs in Digital Environment:

  • Reproduction: Unauthorized copying of software, music, films (digital files).

  • Distribution: Sharing via P2P networks, torrents, cyberlockers.

  • Communication to Public: Uploading content on websites/streaming platforms without license.

  • Circumvention of Technological Protection Measures (TPMs): Breaking DRM (Digital Rights Management).

• Remedies Available (Sec 55, Copyright Act):

  • Injunction: Interdictory (stop infringement) & Mareva (freeze assets).

  • Damages: Compensation for loss & profits.

  • Account of Profits: Surrender of profits made from infringement.

  • Seizure & Destruction: Of infringing copies and equipment.

  • Criminal Remedies: Imprisonment (up to 3 years) & fine (Sec 63).

B. Trademark Law

• Rights from Registration (Trade Marks Act, 1999):

  • Exclusive right to use the mark in relation to the goods/services.

  • Right to sue for infringement and passing off.

  • Right to assign/license the trademark.

  • Right to obtain injunction against similar marks causing confusion.

• Trademark Infringement – Explanation with Cases:

  • Infringement: Use of an identical/similar mark for identical/similar goods/services likely to cause confusion.

  • Case Laws:

    • ITC Ltd. v. British American Tobacco: "Classic" cigarette vs. "Classic" cigar – confusion likely despite different goods (same trade channel).

    • Daimler Benz Aktiengesellschaft v. Hybo Hindustan: "Benz" mark's reputation protected even for dissimilar goods (socks).

• Specific Focus: Jurisdiction in Trademark Disputes (Cyberspace)

  • Territorial Jurisdiction: Where defendant resides, carries on business, or cause of action arises (Sec 134, Trade Marks Act).

  • Cyberspace Challenge: Website accessible globally → multiple potential jurisdictions.

  • Tests Applied:

    • Effects Doctrine: Where effects of infringement are felt (e.g., consumers in India accessing infringing site).

    • Targeting: Website specifically targets Indian market (language, currency, ads).

    • Banyan Tree v. M. S. Sharma: Delhi HC took jurisdiction as website was accessible in Delhi and caused harm there.

C. Patent Law

• Meaning & Definition (Sec 2(1)(m), Patents Act, 1970): A patent is a statutory right for an invention (product or process) granting the patentee the exclusive right to make, use, sell, or import the invention for 20 years.

• Salient Features of Indian Patents Act, 1970 (Amended 2005):

  • Product vs. Process Patents: Both are patentable.

  • Term: 20 years from filing date.

  • Compulsory Licensing: Government can authorize third parties to use patent if patentee doesn't work it in India (Sec 84).

  • Pre-grant/Post-grant Opposition: Mechanisms to challenge patent applications/grant.

  • Patentable Subject Matter: Must be new, involve inventive step, and capable of industrial application.

• Types of Patents:

  1. Product Patent: For a new manufactured item/compound.

  2. Process Patent: For a new method of manufacturing a product.

• Inventions NOT Patentable (Sec 3):

  • Software per se / computer programs as such.

  • Business methods / schemes for playing games.

  • Mathematical methods / algorithms.

  • Aesthetic creations (literary, dramatic, artistic works – covered by Copyright).

  • Discovery of scientific principle or creation of abstract theory.

  • Plants & seeds (protected under PPV&FR Act).

  • Inventions contrary to law or morality.

D. Need for IPR Laws

• Economic Incentive: Encourages investment in R&D by ensuring exclusive commercial benefits.

• Promotes Innovation & Creativity: Provides legal protection, fostering a culture of invention.

• Consumer Protection: Prevents confusion (trademarks), ensures quality (geographical indications).

• Trade & FDI: Strong IPR regime is prerequisite for foreign investment and international trade (TRIPS compliance).

• Cultural Preservation: Protects traditional knowledge, folklore (through GI, trademarks).

• Balancing Rights: Ensures limited monopoly (patent term) after which knowledge enters public domain.

III. JURISDICTION, CYBERCRIMES & INTERNATIONAL LAW

A. Jurisdiction in Cyberspace

• Types of Jurisdiction:

  • Personal Jurisdiction: Over a person (defendant) based on presence/minimum contacts.

  • Territorial Jurisdiction: Over events occurring within a geographical area (state/country).

  • Subject-Matter Jurisdiction: Authority to hear a specific type of case (e.g., cybercrime, IPR).

• Challenges & Examples:

  • Borderless Nature: A website hosted in USA, accessed in India, by a user in UK.

  • Determining "Place of Cause of Action": Where was the infringement felt? Where is server located? Where is user located?

  • Example: An Indian citizen's Facebook account hacked from Nigeria. India can claim jurisdiction based on effects doctrine (harm suffered in India) and nationality principle (victim is Indian).

B. Cybercrimes & Cyber Terrorism

• Definition of Cyber Terrorist:

  • A person who uses computer/network to commit politically/ideologically motivated acts causing violence, fear, or disruption of critical infrastructure (power grids, banking, defense).

  • Objective: Not just financial gain, but to intimidate governments or societies.

• Measures to Counter & Challenges:

  • Measures: National Cyber Security Policy, CERT-In, NCCC, international cooperation (Interpol), robust IT Act provisions (Sec 66F – cyber terrorism).

  • Challenges: Attribution (finding real perpetrator), jurisdiction, fast-evolving tech, lack of international treaty, encryption.

• Specific Cybercrimes:

  • Cyber Stalking: Repeated use of electronic communication to harass, threaten, or intimidate a person. Legal Provision: IT Act Sec 66A (now struck down), IPC Sec 354D (stalking), Sec 507 (criminal intimidation by anonymous communication).

  • Denial of Service (DoS) Attacks: Overwhelming a system/service to make it unavailable.

    • Types:

      • DoS: Single source attack.

      • DDoS (Distributed DoS): Multiple compromised systems (botnet) attack.

      • SYN Flood: Exploits TCP handshake by sending incomplete connection requests.

      • Application Layer Attack: Targets specific app functions (HTTP flood).

  • Software Piracy: Unauthorized copying/distribution of copyrighted software.

    • Solutions: Legal (stronger enforcement, IT Act Sec 63B), Technical (DRM, activation keys), Awareness, Affordable pricing.

    • Legal Consequences: Civil (damages, injunction), Criminal (imprisonment up to 3 years, fine – Sec 63B IT Act, Sec 63 Copyright Act).

  • Reverse Hijacking (Session Hijacking): Taking over a valid computer session (e.g., after user logs in) by stealing session cookies/tokens. Attacker impersonates the user.

C. Defamation in Cyberspace

• Definition (IPC Sec 499): Imputation (statement) intended to harm reputation of a person, made by words (written/sign/visible representation).

• Application to Online Content:

  • Libel: Defamatory statement in permanent form (post, email, website) – more serious.

  • Slander: Transient form (oral, live stream) – must prove special damage unless falls under exceptions.

  • Exceptions (Sec 499): Truth for public good, fair comment on public conduct, etc.

  • Punishment (Sec 500): Simple imprisonment up to 2 years, or fine, or both.

  • Intermediary Liability (IT Act Sec 79): Intermediary (social media platform) not liable if it does not initiate transmission, selects receiver, and acts with due diligence (Grievance Redressal Rules, 2021).

D. International Legal Framework

• Overview of Conventions & Model Laws:

  • Budapest Convention on Cybercrime (2001): First international treaty on cybercrime. Covers illegal access, interception, data interference, system interference