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Intellectual Property Rights and Cyber Law

Introduction:
Rights:

Legal, Social and Ethical principles of freedom

OR
Moral or legal entitlement to have or do something

Types of Rights
Natural Rights:
Natural rights are rights that believe it is important for all humans and animals to have out
of natural law. These rights are often viewed as inalienable, meaning they can almost never
be taken away. The concept of what are natural rights has varied throughout history.
The idea first came up in ancient times but was discussed most famously by English
philosopher John Locke in the sixteen hundreds. Locke said that the most important natural
rights are "Life, Liberty, and Property". In the United States Declaration of Independence, the
natural rights mentioned are "Life, Liberty, and the Pursuit of Happiness". The idea was also
found in the Declaration of the Rights of Man. It is viewed by Locke, Jefferson, and others
that the purpose of government is to protect peoples' natural rights through a social contract
(an implicit agreement among the members of a society to cooperate for social benefits).
There have been many times in history that natural rights have been breached by both
governments and singular people.

{
Natural law is the idea that there are forms of law that exist by themselves. Unlike other
forms of law (called positive laws) that have been agreed on by society, such laws would be
given to all, and would not be possible to do without. Such rights are called natural. In
modern times, human rights are often seen as coming from natural law, but the idea goes
back to Ancient Greece.
Natural law is often founded on the following:
• God, who created natural law with creating the world
• Logos, an idea from philosophy; this is interpreted to be divine law
• Part of natural law inside human beings (called Self-knowledge, sometimes conscience)
• Certain laws that can be deduced from the natural sciences

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• Nature itself
• Reason
Important philosophers who developed natural law include Aristotle, Plato, Seneca the
Younger, Thomas Aquinas, and Immanuel Kant. People who criticized this approach
include Jeremy Bentham and Hans Kelsen.

Law is a set of rules decided by a particular state meant for the

purpose of keeping the peace and security of society

}

Fundamental Rights:
The constitution guarantees certain basic rights to the citizens of a state known as the
Fundamental Rights, which are justifiable.
In India, the Fundamental Rights has been classified under the six categories-
• Right to Equality
• Right to Freedom
• Right against Exploitation
• Right to Freedom of Religion
• Cultural and Educational rights
• Right to constitutional remedies

Legal Rights:
The standard of permitted action within a certain sphere is called rights. In other words, a right is
any action of a person which law permits. Legal rights is different from a moral or natural right in
the sense that it is recognized & protected by law, whereas the latter may/may not be recognized
& protected by law.

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UNIT - 1
Definition of Property:
“In general, Ownership is permanent and inheritable”.
The concept of Property:
• Property is subject to diverse interpretation
• From the legal concept of ownership and possession – Bundle of rights
• The value of property depends on the knowledge of use associated with it
• A matter becomes a “resource” only when there is an idea/technology to use the
matter in such a way that it can satisfy a human need.
• Resource – Material resource and Intellectual or technological resource
• Material resource and Intellectual or technological resource come together with
respect to a substance, it becomes property
Rights over Property:
• Possession/Acquire
• Ownership
• Application
• Enjoyment
• Control
• Alienation/Sale
• Usage
• Right to exclude Non-owners
• Power of transfer
These rights may relate to tangible or intangible things
• Rights over tangible things like land and chattels – Corporeal Property
• Rights over intangible things like ideas, works of art and literature, etc – Incorporeal
Property
• Eg., of Incorporeal Property – Patents, Copyrights and Trade Marks etc.
In general, Property refers to the interest over property, which is protected by law.
• The property law always has tried to incorporate some element of distributive justice
• Distributive justice is concerned with the fair allocation of resources among diverse
members of a community. Fair allocation typically takes into account the total amount
of goods to be distributed, the distributing procedure, and the pattern of distribution
that results.

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• Conflict between the fundamental right to property (Indian Constitution – Art. 31)

What is Intellectual Property?

“Property created by the intellect of human mind”
e.g., patent, copyright, trademark, designs and trade secrets
• Novelty/originality
• Duration specific
• Does not provide absolute monopoly
• The bundle of rights constituting IP is not over abstract ideas
• Eg, Rights under Patent law – Right to manufacture, distribute, etc & Rights
under copyright law – Right of publication, distribution, etc all are deals with
concrete embodiments of ideas and not the abstract ideas in themselves.

Importance of IPR with respect to present scenario/modern world:

Intellectual property (IP) contributes enormously to our national and state economies. Dozens
of industries across our economy rely on the adequate enforcement of their patents,
trademarks, and copyrights, while consumers use IP to ensure they are purchasing safe,
guaranteed products. We believe IP rights are worth protecting, both domestically and
abroad. This is why:
• Intellectual Property Creates and Supports High-Paying Jobs
• Intellectual Property Drives Economic Growth and Competitiveness
• Strong and Enforced Intellectual Property Rights Protect Consumers and Families
• Intellectual Property Helps Generate Breakthrough Solutions to Global Challenges
• Intellectual Property Rights Encourage Innovation and Reward Entrepreneurs
{
Labour Justification of Property:
• One of the most popular justifications put forward for the protection of property is to
justify a reward for the labour put in to create/generate it
• Proponents of this theory was John Locke
• starts with the presumption that ‘Every man has a property in his own person’
• This leads to claim that an individual’s labour also belongs to that individual

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• The origin of property is stated by him as “Whatsoever then he removes out of the
state that nature hath provided, and left it in, he has mixed his labour with, and joined
to it something that is his own, and thereby makes his property”.
• According to this theory, labour adds value to goods. Goods are converted from the
“commons” by exerting labour.
• In the case of intellectual property, it can be said that ideas are taken from a common
pool through mental and/or physical exertion.
• One view of this theory is that labour is an unpleasant activity for which people
should be rewarded or should be motivated to perform by securing benefits in return.
The Personality Justification of Property:
• Property provides a mechanism for personal expression, dignity and recognition of the
individual person
• Proponents of this theory was Hegel
• According to Hegel, “property is the embodiment of personality”.
• With respect to intellectual property, ideas are a manifestation of the creator’s
personality or self and hence need to be protected
• The personality justification is especially applicable to the arts and artistic creations
• However there are also a number of forms of intellectual property, which reflect little
or no personality of their creators such as patents, engineering designs and secrets
Need for Holistic approach:
}

Constitutional Aspects of Intellectual Property:

• Intellectual property legislation takes place in India after TRIPs (Trade Related
Intellectual Property Rights) agreement to protect IPs.
• USA Constitution specifically protects the Intellectual Property
o Art. 1(8) of the US constitution which provides “To promote and progress of
science and useful arts, by securing for limited times to authors and
inventors the exclusive right to their respective writings and discoveries”
• There is no class in Indian Constitution related to IPs, but Parliament has the power
to make legislation on IPs
• At the time of enactment of Indian constitution, Individual had property rights under
Art. 19(1)(f) and Art. 31(1)

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o Art. 19(1)(f) – A citizen had the freedom to acquire, hold and dispose of
property, which were subject to the reasonable restrictions laid down in Art.
19(5)
o Art. 31(1) – protected the citizens from the deprivation of property without
authority of law
o Art. 31(2) – Property could be possessed or acquired for public purpose only
by law, and only on payment of compensation. The law had fix the amount of
compensation or had to lay down the guidelines to assess the compensation to
be paid. Such law made by the state had to obtain the assent of the President to
get validity

Basic Principles of Patent Law:

• Patent system conferred monopoly rights on the inventor for a limited period of time
• These acts as incentives or reward to encourage the stimulation of ideas thereby
leading to further advances
• The conferment of right in the form of patent is justified from the perspective of both
the inventor and the general public
o Inventor – Incentive to invest
o Public – useful products
Evolution of the Patent system:
• Had its roots in Venetian system, British system, American system
• Development of Venetian system influenced the development of the British and the
French system
• In the early 14th century, certain special privileges were requested by a section of
water millers who had a unique set for the purpose of using it before mining
• The grant of special privileges to water millers can be taken as marking the birth of
patent system
• Later in 1323, a German engineer was granted the first known privilege for the
construction of a model Grain mill, which would cater the storage needs of entire
Venice.
• Venetian Senate Act of 1474 is the first patent statute
• Statute of Mineraria in 1488

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United Kingdom:
• Patent system evolved in the form of letters patent
• It was the royal prerogative to issue these sealed letters containing certain privileges
to the inventors
• Most of the letters were trading monopoly rather than for new inventions
• To enrich their technology by providing certain privileges to foreign inventors
• They provide monopoly for new technology brought into England with a condition
that they should settle in England and teach the local people
• Privileges also given to the importers of technology
• To promote development and growth of Industry in England
• This form of state patronage was effectively adopted by Queen Elizabeth, but came
to misused during regime of James I.
• In 1602, in the famous case of monopolies, a monopoly was granted to a merchant
exclusively to import, manufacture and sell playing card. The King’s bench struck
down the monopoly right and held that monopoly was illegal at common law
• Industrial growth being the fundamental reason for granting monopoly rights, the
English system did not insist on the disclosure of the invention to the public
• The protection of intellectual labour of the inventor was not their concern
• Henry IV introduced a statute in 1399, which provided to produce a description of
the invention for the grant of the patent. But the patentee never disclosed the details of
his invention.
• In 1611 the disclosure of the invention was strictly insisted upon
• In 1624 with respect to the case of Monopolies, the English Parliament passed the
statute of Monopolies to cope up with situation. The statute, which prohibited
monopolies for the sole buying, selling, making, working or using or anything with in
England, was enacted in response to the Crown’s generous grant of monopolies to
court favourites. Monopolies per se were excluded unless they came within the
exception of Section 6. Section 6 of this statute can be regarded as laying the
foundation of modern patent law
• According to Section 6, the granting power of monopoly to inventions by the Crown
was restricted to a period of 14 years. It laid down the condition that monopoly can be
granted only for “any manners of new manufacture” to the “the true and first

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inventor” (The concept of ‘truth of inventor’ was interpreted as ‘the true and 1 st
founder or institutor of the manufacture).
• This statute hallmarked the concept of novelty for the first time and also found a
balance between the interests of the inventor and the state
United States:
• The foundation of American Patent law is embodied in Art. 1, Section 8, Clause 8 of
US Constitution
• This provision empowers the congress to promote the progress of science and
technology by securing exclusive right for limited times to the authors and inventors
with respect to their respective writings and discoveries.
India:
• In 1856 the first Indian patent statute was passed to the recommendations of the
Committee appointed to revise and update the laws to serve the society’s changing
needs
• This provide privileges to the inventors of new inventions for a period of 14 years
• This act was modified in 1859 – provides privileges to make, use and sell the
inventions for a period of 14 years
• This act was repealed by the Inventions & Designs act in 1888 again repealed by the
Indian Patents and Design acts in 1911
• A patent enquiry committee was appointed by the Govt of India under Dr Tek Chand
in 1948 to review the working of patent laws in India
• This committee submitted its final report in 1953
• Based on the report of the committee a Patent bill based on the UK Patents act 1949
was introduced in LokSabha in 1953, but the lapsed due to the dissolution of
LokSabha
• In 1957, the Govt of India appointed a Committee under Justice Rajagopala Ayyangar
to suggest necessary changes and revise the patent law in India taking into
consideration the social needs of the people of India.
• This committee submitted its report on September 1959
• Based on the committee report, a Patents bill was introduced in LokSabha in 1965
with additional changes
• The bill was studied by joint committee and presented in LokSabha in 1966, lapsed
due to dissolution of Loksabha

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• The bill was introduced and passed in 1970 and came into force in 1972
• India as a member of TRIPS, Indian Patents Acts 1972 was amended in 1999, 2002 &
2005
Basis for protection (IP):
• From the historical background, we came to know that patent is originated purely for
promoting industrial innovations.
• Patents are given only when idea is come up with the tangible property
• For a period of 20 years
• It is not an automatic right, only statutory conferred, available through the proper
procedure
• It is form of Industrial property conferring monopoly for production/process for
specific period that is reward given by the state to inventor with useful to public
• It provides an incentives to the inventor to invest in Research and Developments
• After getting patent right, inventor has to disclose his invention and it is available to
public after the term.
• Patents provides the ground for technological innovations-enhancing the Industry-
Economic growth of the Society
Invention:
• Find out / discover something not found by anyone before
• The patent act 1977 of UK does not define invention, Section 1 of 1977 act a patent
may be granted only for an invention, which is new and capable of industrial
applications
• US code under section 100(a) gives the definition for invention as Discovery. Section
101 states new and useful improvement
• Under sections of 2(1)(j) of patent act of 1972( amended in 2002) new product or
process useful for industrial application
• Patent act of 2005 defines new invention means any invention/technology had not
used in the world before the date of filing complete patent application
Criteria of Patentability
1. Novelty
2. Utility
3. Inventive step/nonobviousness

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Novelty:
• ‘Bed rock or heart of the patent system’
• New at the time of invention by inventor
• No system grants valid patents for innovations that are already known. For an
invention of something in the public domain, which will detrimental to the interests of
the Society.
• Both prior use and prior publication are obstacle for granting patents
• Prior use – knowledge or use in public
• Prior publication – publication n earlier patent specifications or any other material that
is available to public use
• Novelty under UK law:
• Section 1(1) and section 2 of the patent act, 1977.
• Novelty under US law
• Section 102 of US code
• Novelty under Indian law
• Patents Act, 2002
Utility:
• Usefulness
• Industrial applications – positive benefit to Society
• Utility under UK law:
• Section 1(1) C of the patent act, 1977.
• Utility under US law
• Section 101 of US code
• Utility under Indian law
• Patent law does not contain any information. Section 2(1)(j)
Inventive Step/Non-obviousness:
• Adequate technical advancement i.e., advancement of science
• Non-obviousness under UK law:
• Section 1(1) b of the patent act, 1977.
• Non-obviousness under US law
• Section 103 of US code
• Non-obviousness under Indian law

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• Patents Act, 2002, Section 2(1)(j)

Non-Patentable Inventions
1. An invention which are frivolous or which claims anything obvious contrary to well
established natural laws
2. An invention the primary or intended use of which could be contrary to public order
or morality or which causes serious prejudice to human, animal or plant life or health
or to the environment
3. The mere discovery of a scientific principle or the formulation of an abstract theory or
discovery of any living or non-living substance occurring in nature
4. The mere discovery of a new form of a known substance which does not result in the
enhancement of the known efficacy of the substance or the mere discovery of new
property or new use for a known substance or of the mere use of a known process,
machine or apparatus unless such known process results in a new product or employs
at least one new reluctant
5. A substance obtained by a mere admixture resulting only in the aggregation of the
properties of the components thereof or a process for producing such substance
6. The mere arrangement or re-arrangement or duplication of known devices each
functioning independently of one another in a known way
7. A method of agriculture or horticulture
8. Any process for the medicinal, surgical, curative, prophylactic, diagnostic, therapeutic
or other treatment of human beings or any process for a similar treatment of animals
to render them free of disease or to increase their economic value or that of their
products
9. Plants and animals in whole or any part thereof other than micro-organisms but
including seeds, varieties and species and essentially biological process for production
propagation of plants or animals
10. A mathematical or business method or a computer program per se or algorithms
11. A literary, dramatic, musical or artistic work or any other aesthetic creation
whatsoever including cinematographic works and television productions
12. A mere scheme or rule or method of performing mental act or method of playing
game
13. A presentation of information
14. Topography of integrated circuits

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15. An invention which, in effect, its traditional knowledge or which is an aggregation or

duplication of known properties of traditionally known component or components

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Introduction:
TRIPS – Trade related aspects of Intellectual Property Rights
The TRIPS agreement which deals with the provisions relating to patents, trademarks,
designs and copyrights consists of seven parts:
PART I: General provisions and Basic principles
Part II: Standards concerning the availability, scope and use of Intellectual Property Rights.
This part includes 8 sections
Section 1. Copyright and Related Rights
Section 2. Trade Marks
Section 3. Geographical Indications
Section 4. Industry Designs
Section 5. Patents
Sectiopn 6. Layout designs of Integrated Circuits
Section 7. Protection of Undisclosed Information
Section 8. Control of Anti-Competitive Practices in Contractual Licences
Part III: Enforcement of Intellectual Rights
Part IV: Acquisition and maintenance of Intellectual property rights Inter-parts procedures
Part V: Dispute Prevention and settlement
Part VI: Transitional arrangements
Part VII. Institutional arrangements and Final provisions
Patents
Origin:
• Patent has its origin in the term by “Letters patent” by UK ( open letter )
• To save the interests of inventors, the then British rulers enacted the Indian Patents
and Design Act, 1911
Meaning of the term ‘Patent’:
• To grant some of privilege, property or authority made by the Government of country
to one or more individuals.
• Controller has power to grant patent to inventors for a period of 20 years as per The
Patents Rules, 2006.
• The person to whom a patent is granted is called patentee.
• After the expiry of term invention is available to all

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Patent agent:
• A person for the time being registered under the patents act, 1970.
Patent – A form of property
• The patentees exclusive proprietary right over the invention is an intellectual property
right
• The owner of the patent, i.e., patentee is entitled to deal with his such property in the
same manner as owner of any other movable property deals with his property
• It means, the patentee can sell the whole or part of his property (patent)
• He can grant license to others to use the patented property
• He can also assign such property to any others
Objective behind Patent law:
• To gain commercial advantages
• Encourage the inventors to invest for R&D
• Encourage scientific research, new technology and industrial progress
• To protect fair competition in the field of science and technology
Legislative PROVISIONS REGULATING Patents:
• The Indian Patent Act, 1970
• The Patent Rules, 2003
• The Indian Patent Act was amended in 2005
• The Patent Rules were amended in 2005 and 2006
Principles underlying the patent law in India:
• Newness
• Usefulness
• Non-obviousness
• Exceptions
Patentable Inventions:
• Patent is given to an invention “Technical advancement”
• Criteria of Patentability defined by existing law
• Section 2(1)(j) of patents Act, 1970
• The Patent Rules, 2003, rule 2(c)
• Section 2(1), Patents (Amendment) Act, 2005

• Intangibles are not patentable

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New product/process/technical advance

or/and
Invention / Technology of something
More useful product/process or/and
should result in
More economical product/process or/and
Capable of industrial applications

• Patentable combination is the one in which the component elements are so combined
to produce new result or arrive old result in new form

New result or
Combination of component elements
Old result in better, more expeditious, or
resulting in
economical manner

• A patentable invention has to be new product or process involving an inventive step

capable of industrial application.
Patents which are not patentable under the Act:
• Section 3 and 4 of Indian patents act – 1970 gives details
• Anything against natural laws
• Which causes serious prejudice to human, plant, animal life or health or to
environment
• Method of agriculture, horticulture
• Method of medicinal treatment
• Business method, etc.
-Inventions relating to atomic energy not patentable
Patent of Addition:
• If a patentee or a person who applied for patent makes an application to the controller
with respect to improvement or modification of his invention, Controller may grant
patent for improvement/modification
• If an invention is modification or improvement of another invention, then, controller
may on request revoke the patent for improvement or modification and grant a patent
of addition from the date of patent was revoked.

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• The patents (Amendment) act, 2005 – a patent of addition shall not be granted before
grant of the patent for the main invention.
Process Patent:
A patent can be granted to a new and useful:
• Product or process ( food/drugs)

UNIT – 2
Procedure for obtaining Patent
It has following steps:
• Submission of applications
• Publication and examination of applications
• Opposition to grant of patent to the applicant
• Grant and sealing of patent
Submission of applications:
1. Conditions of Section 6 – 11 has to be satisfied
Section 6 – Who is eligible?
Section 7 – Application type or form of application – Internal
Section 8 – Information and undertaking of foreign applications
Section 9 – contents of provisional specification
Section 10 – contents of complete specification
Section 6 – Who is eligible?
• True and first inventor
One who convert idea to work
• Assignee of the person claiming true and first inventor
• Legal representatives of deceased person
- First – to – apply system
Invention made by an employee:
• Invention is belong to employee or employer is based on their contract
• If employee is specifically employed for research and development then, invention
belongs to employer
Section 7 –form of application
• One application for one invention
• Form 2 as per patents rules 2003

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• 7(1A) – Internal patents

• 7(1B) – Date filing
• 7(2) – Assignment – right to apply for patent
• 7(3) – Declaration from the applicant as true and first inventor
• 7(4) – Application accompanied by provisional or complete specification

Procedure for Registration of Patent:

File application in the patent office

Provisional / complete specification should be filed

Acceptance of specification

Publication of application

Request for examination of application

Report of examiner

Approval Objections Division of applications

Amendment of objections

Patent is granted

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Special provision for foreign applicants: section (8)

• A statement setting out detailed particulars of such application
• An undertaking, time to time written communication with controller
• Patents rules 2003
The application to file provisional and complete specification:
section 9 :
• application along with provisional specification
• Complete specification has to be submit within 12 months from the date of filing
application
Section 10:
• Lists the contents of complete specification
What is specification?
A technical document describing the invention
Provisional – initial description of an invention
Complete – full and sufficient detail of an invention
Publication and examination of the applications - section 11:
• Patents act – 2005
• Section 11A – no application for patents shall be open to the public for a period of 18
months from the date of filing.
• Applications are not published after expiry date due to
o Secrecy
o Abandoned
o Withdrawn
• The publication of every application includes:
o Particulars of the date of applicant
o Number of application
o Name and address of the applicant
o An abstract
• Section 11B – the applicant must request for examination of the application for patent
within 36 months from the date of filing otherwise the application will be treated as
withdrawn
• When request for examination:
o Whether applications are in accordance with the rules and regulations

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o Any lawful ground of objection

o Result of investigation
o Any other matter
• Examiners has to submit the report within one month or 3 months from the date of
reference of the application -----------------------
Communication to the Applicant:
• If any objections raised by the examiners
• Patent office communicated to the applicant
• Applicant has to submit explanation/amendments within 15 months it can be extended
up to 18 months by request
• If the rectification for objections are not satisfied, then Controller giving an
opportunity of hearing
Powers of the Controller of Patents:
• Under section 14 , Controller has the right to communicate list of objections raised by
the examiners to the applicant
• Controller has the right to refuse the application if it is not in order
• Under section 16 , Controller has the power to verify the claims in two application are
different if the applicant had submitted two applications
• Under section 17, Controller has the right to post - dated the application for a
maximum period of 6 months by request etc.
Opposition Proceedings to Grant of Patent:
• Where an application for a patent has been published but patent has been granted, any
person may, in writing, represent by way of opposition to the controller against the
grant of patent on the grounds:
1. The applicant had wrongfully obtained the complete invention or a part thereof
from a person under or through whom he claims. – two or many were involved in
invention one may applied then other or his/her assignee/legal representative in
case of dead, can oppose the application
2. Prior publication in any Indian specification/other documents or elsewhere
3. The invention has been the subject-matter of a prior claim in an application which
is prior in time than the applicants claim
4. The invention as claimed by the applicant in his complete specification was
publicly known or publicly used in India before the applicants claim

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5. The invention is obvious and does not involve any inventive step
6. The invention is not patentable or its patenting is prohibiting under patent act
7. The complete specification does not sufficiently and clearly describe the invention
8. In case of foreign applicant, the failure to disclose information
9. In case of convention application, the application was not made within 12 months
from the date of first application
10. In case the complete specification does not disclose or wrongly mentions the
source or geographical origin or biological material used for the invention
11. In case the invention so far as claimed in any claim of the complete specification
is anticipated having regard to the knowledge, oral or otherwise, available within
any local or indigenous community in India or elsewhere.
Grant of Patents:
• If an application does not have any objections/ contraventions/ approved then patent is
granted
• A patent can be granted for one invention only

Date of Patent:
• The patent is effective from the date of filing of complete specification
Extent and Effect of Patent:
• Throughout India
Term of the Patent:
• 20 years from the date of filing of the application( Complete specification)
Joint Inventors:
• Joint inventions
• Where the application for patent is made by two or more joint applicants
• Substitution of one of the joint applicants will not be allowed, except with the consent
of the other joint applicants
• A co-owner of a patent cannot assign his rights without the consent of the other co-
owners
• On the death of a joint applicant before the patent is granted, the controller may on a
request made by the survivors and with the consent of the legal representative of the
deceased, direct the application to proceed in the name of the survivors alone.

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Compulsory Licence:
• Patent can be cut or short by the grant of compulsory licence or licence of right to any
person to work the invention when the patentee fails to work the invention in public
interest.
Compulsory license will protect the interest of the society:
• Refusal to deal
• Non-working and inadequate supply
• Public interest
• Anti-competitive practices
• Governmental use
• Facilitate the use of dependent patents
• Compulsory licenses for medicines
• Licenses of right
Across the globe the compulsory license on Intellectual Property Rights (IPRs) is granted on
almost similar grounds like –
• Charging unreasonably exorbitant prices of an essential facility or commodity, or
• Market demand not sufficiently met, or
• Where substantial public interest is affected by the way IPR holder is exercising its
right.
• Abuse of IPR leading to exclusion of competitors in an industry.
Provisional and Complete specification
Specification:
• The Description of the patent
Contents and form of specification:
1. The specification begins with Title
2. The full description along with implementation method
3. Specification must end with claim or claims and relate one invention only
4. Specification must be accompanied by abstract
5. In case of international application designating in India, the title, description,
drawings, abstract and claims are present
6. Declaration from the applicant
7. A complete specification may include claims in respect of developments of, or
additions to, the invention which was described in a provisional specification,

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being developments or additions in which the applicant would be entitled to make

a separate application for a patent
Nature of the patent specification:
• Specification is a technical and legal document
Kinds of Specification:
1. Provisional specification
2. Complete specification
Provisional specification:
• While an inventor is in the process of finalising his invention, he may file a
specification
• Contains general description of the invention
• May/may not contains claim
Need to file a Provisional specification:
• To fix the priority date of the patent
Provisional Specification to be followed by Complete Specification:
• A complete specification shall be filed within 12 months from the date of filing of the
provisional specification
• When a complete specification does not follow a provisional specification within the
maximum period of 15 months, the patent application is deemed to have been
abandoned
Complete specification:
• Full description of the invention containing all the claims over which the applicant
seeks monopoly right
The contents of a complete specification are:
1. The specification begins with Title
2. The full description along with implementation method
3. Specification must end with claim or claims and relate one invention only
4. Specification must be accompanied by abstract
5. In case of international application designating in India, the title, description,
drawings, abstract and claims are present
6. Declaration from the applicant
7. A complete specification may include claims in respect of developments of, or
additions to, the invention which was described in a provisional specification,

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being developments or additions in which the applicant would be entitled to make

a separate application for a patent
Priority Date of a Claim:
• The date of filing of the provisional specification provided the claims contained
therein are fairly based on the description of the invention as given in the provisional
specification
The interpretation of specification and its importance:
• It builds the boundaries around the monopoly right
• The claims must include all possible equivalent variations of the invention to guard
against infringement
Claims:
1. Main claim- invention is in the broadest possible terms
2. Subordinate claim – additional feature of the invention
3. Omnibus claim – which relates to any arrangement substantially as described and
as shown in the drawings
• Omnibus claim protects the applicant from infringement of his invention by creation
of equivalent alternatives
The principles of the construction of specification:
1. The complete specification must be read as a whole document of invention
2. The claim itself marks the legal limits of the monopoly right. If an applicant fails to
claim something, he cannot claim that later
3. The language of the claim must be clear and un-ambiguous
4. The meaning of a specification is addressed to a person skilled in the art
5. The subjective opinion of the patentee regarding the invention are immaterial
6. The court of competent jurisdiction is the authority to interpret the specification
7. If the other party relies on documents other than the complete specification to plead
invalidity of the patent, such a document would be inadmissible.
8. The meaning of the claim is to be the same whether for the purpose of infringement or
challenge to its validity.
Whether a specification can be amended once it has been filed:
1. Amendment before acceptance
2. Amendment after acceptance
3. Amendment after the sealing of patent

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Amendment before acceptance:

• If the application is not in order as per the law, then controller may ask for the
amendment:
1. If the amendment is based on the matter submitted earlier then the priority date is
date of filing
2. If the amendment is new on the matter submitted earlier then the priority date is
considered as date of amendment
Amendment after acceptance:
• A party may oppose any of the claims of the applicant, then controller may direct the
applicant to amend the specification
Amendment after the sealing of patent:
• Before the grant of patent, a person other than patentee, can apply for revocation of
the patent before High court. The court may order for the amendment of specification
instead of revocation
Conditions for Amendment:
1. Disclaimer – statement by the applicant denying a claim
2. Correction – correcting an obvious mistake in the specification
3. Explanation – better explains not change its meaning
Who is to allow the Amendment?
• Controller – before grant patent
• High Court – Revocation of patent
• High Court – After granting a patent
Rights conferred on a Patentee
Rights conferred on a patentee under the act are:-
1. To exploit the patent
2. To licence the patent to another
3. To assign the patent to another
4. To surrender the patent
5. To sue for the infringement of the patent
Exceptions and limitations
The act provides certain limitations on the exercise of rights are
1. Government use of patents
2. Compulsory licences and licences of rights

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3. Use of inventions for defence purposes

4. Revocation for non-working of patents
5. Limitation on restored patents
Transfer of Patents
Patent is a transferable property. It can be transferred from the original patentee to any
other person by assignment or by operation of law. Transfer of patent can also occur by
grant of licence by the patentee to another person to work the patented invention

If there are two or more co-owners of a patent, one single co-owner cannot assign or
license the patent, except with the consent of the other co-owner

Forms of Transfer of Patent Rights:

1. Assignment
2. Licence
3. Transmission of patent by operation of law
Assignment:
• Means the transfer by a party all of its rights or interest in the property
• In case of intangible property like patent, the transfer is made through an agreement to
this effect
The difference between assignment and licence:
• The licence merely confers a personal privilege to do some particular act(s) which the
licence can perform.
• There is no transfer of interest in licence
• Assignment means transfer of interest in the patent: whole or in part of the patent
rights
Assignee:
• The person in whose favour a right has been assigned is the Assignee and the person
who assigns the right is the Assignor
• In case an assignment has been made in favour of a person who has since died, the
term assignee would denote the legal representative that is the person who in law
represents the estate of the deceased (recently dead) person. Where assignment is
made in favour of two or more persons, they become owners of such interest in the
patent

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Kinds of Assignment:
1. Legal Assignment
2. Equitable Assignment
3. Mortgage
Legal Assignment
• Assignment through an agreement and duly registered as legal assignment
• Legal assignee has the right to have his name entered in the Register of patents in
Controllers office as proprietor of the patent and he can excise all the rights
Equitable Assignment
• Any document such as letter but not being an agreement, which is duly registered
with the controller in which patentee agrees to give another person certain defined
right in the patent with immediate effect
• Assignee cannot have his name entered in the Register of patents in Controllers office
as proprietor
• He can have a notice of his interest entered in the register
• He can convert the Equitable Assignment to Legal Assignment by getting a written
agreement to this effect and duly registered
Mortgage
• Document transferring the patent rights either fully or partially to the mortgagee with
a view to secure the payment of a specified sum of money.
• It can re-transferred to the patentee on refund of money to the mortgagee
• Mortgagee can get his name entered in the register as a mortgagee
Conditions to create a valid assignment
1. Valid document containing all the terms and conditions governing the rights and
obligations between the parties
2. It is duly registered under the provisions of Indian Patents Act.
Licence
A patentee can transfer a right by a licence agreement permitting a licensee to make, use or
exercise the invention.
Kinds of Licence:
1. Voluntary Licence

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- Written authority granted by the owner to another person(s)

empowering the latter to make, use, sell the patented article in the
manner and on terms and conditions provided in the licence
- Terms and conditions are settle between both parties
- Controller/Govt., has no role
2. Statutory Licence
- Example ‘Compulsory licences’ and ‘licences of right’
- Controller and central Govt., play an important role
- Circumstances of grant of such licences, their terms and conditions do
not depends upon the will of the parties
3. Exclusive / Limited Licence
- Depending upon the degree and extent of rights conferred on the
licensee, a licence may be exclusive or limited
- An exclusive licence confers all exclusive rights (to make distribute or
sell) on the licensee excluding all other persons
Eg - a patentee A in India grants a licence to B to exploit the licence in
India. A does not confer any other person such right. B gets exclusive
licence in the patent
- A limited licence imposes certain limitations on the right of the
licensee. The limitations may relate to persons, time, place of
manufacture, use or sale.
Eg – A grants licence to B to manufacture the patented article and
gives C the licence to sell it in the territory of Karnataka only. Both B
and C get limited licence
4. Express / Implied licence
- An express licence is the one in which the permission to use the patent
is given in express terms
Eg – “I the patentee of ……………….authorises X to ……………”
would constitute a clause in an express licence.
- It is not valid unless it is written in a document embodying the terms
and conditions of the licence and the document is registered with the
Patent Office.

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- In an implied licence, the permission is not given in express terms in

writing but it is implied from the circumstances
Eg - where a person buys a patented article either directly or indirectly
from the patentee or his licensee, there is an implied licence to the
buyer to use the article in any way or to resell it
Rights conferred on a licensee
• Make, use or exercise the patented inventions
• Based on the valid conditions or limitations licensee will have the right to initiate
proceedings against infringement of rights
Transmission of patent by operation of law
• When a patentee dies, his interest in the patent passes to his legal representative
• A patent can also be acquired by the Govt., under the Act when reasonable
requirements of public have not been met
Registration of assignment/Licence is essential
• Validity
• Sue for the infringement
Certain restrictive conditions to be avoided
• Patentees have the rights to impose certain restrictions on licensees
• The Patentees cannot impose restrictions on licensees which are against public
interest as per section 140 of act.
When a restrictive condition can be imposed
• A patentee who has licenced a wholesale or retailer to sell the patented article may
prohibit them from selling his competitors goods.
• He can also insist that the spare parts required for repairing the patented article leased
or licensed should be purchased from him only.

Infringement of patents:
A patent confers the exclusive right violation of these rights is nothing but Infringement.
• In case of product patent, the rights of the patentee are infringed by anyone who
makes or supplies that substance commercially
• In case of a process patent, the use of such a method or process in India by anyone
other than the patentee.

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What can be amount to be Infringement?

• The colourable imitation of an invention
• Immaterial variations in the invention
• Mechanical equivalents
• Taking essential features of the invention
All the above acts overlap each other when an infringement of patent or process occurs.
A colourable variation or Immaterial variation amounting to infringement is where an
infringer makes slight modification in the process or product but in fact takes substance the
essential features of the patentees invention.
Infringement by mechanical equivalents would occur when he uses mere substitutes for those
features so as to get the same result for the same purpose as obtained by the patentee.

Who is entitled to sue?

• The patentee
• The exclusive licensee if the license is registered
• A compulsory licensee when the patentee refuses or neglects to institute proceedings
• A licensee other than the above two licensees can bring an action for infringement
depending upon the terms of the contract between the licensor and licensee
• Assignee
• Co-owners of a patent
Action for Infringement
Whenever the monopoly rights of the patentee are violated, his rights are protected again by
the court of law. The patentee has to institute a suit for infringement. The relief may be
awarded in such suit are:
1. Interlocutory/interim injunction
2. Damages or account of profits
3. Permanent injunction
Where a suit is to be instituted
A suit for infringement shall not be instituted in any court inferior to a District Court having
jurisdiction to try the suit.
Procedure followed in the suit
The procedure followed in conducting a suit for infringement is governed by the provisions
of Code of Civil Procedure.

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When can a suit be instituted

• A suit for infringement can be instituted only after the patent has been sealed. When a
specification has been accepted and published, i.e., during the period when opposition
has been called and is being decided, the applicant cannot institute a suit for
infringement, but damages sustained due to the infringement committed during the
period, i.e., between the date of publication of acceptance of complete specification
and date of grant may be claimed in another suit. A separate suit for damages but not
a suit for infringement.
• When the term of patent has expired and infringement occurred during the term of the
patent, a suit can be instituted during the term or even after the expiry of the term
• In case of patent had lapsed and was subsequently restored, no suit or other
proceedings can be brought for infringement committed between the date on which
the patent ceased to have effect and the date of publication of application for
restoration
• When a patent was obtained wrongfully by a person and later granted to the true and
first inventor, no suit for infringement can be instituted for any infringement
occurring before the period of such grant to the true and first inventor.
Period of limitation for instituting a suit
The period of limitation for instituting a suit for infringement is three (3) years from the date
of infringement.
Who can be sued?
• Person who infringes the patent that violates the monopoly right of patentee can be
sued for infringement
• When two or more persons have jointly infringed the patent, both of them have to be
sued as co-defendants
• Agents and servants of a principal who is responsible for the infringement can also be
sued either individually or collectively along with their employer/principal
• The consignees of an infringing article can be made a party to the proceedings in an
infringement suit
Reliefs available in an action for infringement
The reliefs which a court may grant in any suit for infringement includes
• Injunction
• Damages or Account of profits

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Injunction:
An injunction is an order of a court prohibiting someone from doing some specified act or
commanding someone to undo some wrong or injury.
Types of injunctions:
• Temporary/interlocutory injunctions
• These are the court orders which are in force for a specified time or until
further order of the court
• It may be granted at any time during the proceedings of the suit
• The plaintiff may at the commencement of the suit or any time during the
suit move to the court for grant of an interim injunction to restrain the
defendant from committing and continuing to commit the acts of alleged
infringement.
Principles followed by the courts to grant interlocutory injunctions
• Plaintiff must establish prima facie case in his favour
• He must also establish that the balance of convenience lies in his favour
The balance convenience will be in favour of the plaintiff when relief given to him will not
offend the interest of the party who is alleged to have caused infringement
The question of balance of convenience for grant of interlocutory injunction arises when it is
doubtful whether damages can adequately provide relief to the parties for the loss suffered.
The factors to be considered for deciding the balance of convenience are
• Whether the patent is new/old one
• Whether the term of the patent is to expire before the proceedings can be heard
• Whether the validity of the patent has been challenged
• Whether it is possible to compensate the plaintiff by award of damages when he
succeeds at the trail
• Whether the defendant can be adequately compensated by the plaintiff’s
undertaking as to payment of damages
Depending on the above factors or any other relevant factors court may grant/refuse an
interlocutory injunction
Final injunction:
Final injunction is granted at the termination of the trial. The time or which the final
injunction is in force is the remaining term of the patent at the time of grant of the final
injunction

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Damages or account of profits:

A successful plaintiff in a suit for infringement is entitled to the relief of damages or account
of profits, but both reliefs cannot be granted together.
In certain cases damages or account of profits cannot be granted
• When the infringement was innocent, that is, the defendant was not aware that the
patent existed
• The infringement was committed after the failure to pay renewal fee with-in the
prescribed time and before any extension of the period
• Where the specification has been amended and the infringement was committed
before the date of such amendment
Object of awarding damages:
To compensate for the loss or injury suffered by the plaintiff due to the action of the
defendant
Assessment of Damages:
the amount of damages awarded is proportional to the injury suffered by the party and shall
be such sun of money which will put the injured party in the same position as he would have
been in, if he not encountered wrong.
The quantum of damage is determined by the court appropriately
Account of Profits:
The court may either award damages or account of profits but both of them cannot be claimed
together. The plaintiff has to prefer either of the two
The account of profits is determined on the basis of actual use of the patentee’s invention by
the infringer during the period of commission of the act of infringement. Account of profits is
the part of profits which can be attributed to the use of the patentee’s invention by the
infringer.

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UNIT - 3
Copyright
Meaning:
• Copyright is a form of intellectual property.
• The right which a person acquires in a work, which is the result of his intellectual
labour is called his copyright
Definition:
The statutory definition of copyright means the exclusive right to do or authorise other(s) to
do certain acts in relation to
• Literary, dramatic or musical works
• Artistic work
• Cinematograph film
• Sound recording

Section 14 of the Copyright act, 1957 (hereinafter referred to as the Act) defines copyright as
above

Characteristics of copyright:
1. Creation of a statute
- Copyright is creation of a statute under the present law. There is no such thing
as common law copyright. No copyright can exist in any work except as
provided in the section 16 of the act
2. Some form of intellectual property
- Since the product over which the right is granted, e.g., a literary work is the
result of utilisation and investment of intellect.
3. Monopoly right – restraining the others from exercising that right which has been
conferred on the owner of copyright
4. Negative right – prevent others from copying or reproducing the work
5. Copyright only in form not in idea
6. Multiple rights
- Copyright is not a single right. It consists of bundle of different rights in the
same work.

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- In case of literary work copyright comprises the right of reproduction-right of

serial publication-right of dramatic and cinematographic versions, right of
translation, adaptation, abridgement and the right of public performance
7. Neighbouring rights – Copyright consists not merely of the right to reproduction. It
also consists of the right to works derived from the original works. Rights like the
right of public performance, the recording right-broadcasting right are more important
than the right of reproduction. Such related rights are termed “neighbouring rights”

Object of Copyright
- The object of copyright law is to encourage authors, composers and artists to create
original works by rewarding them with the exclusive right for a specified period to
reproduce the works for publishing and selling them to public
- The fundamental objective of Indian and English Copyright Law has always been the
protection of the fruits of a man’s skill, labour and effort from appropriation by others
- Thus protecting , recognising and encouraging the labour, skill and capital of another
is the object of a copyright

Development of Copyright law in India

- The development of Indian copyright law is closely associated with the British
copyright law
- Statute of Anne, the first copyright act in England was passed in 17 th century which
provided that the author of any book already printed will have the sole right of
printing such book for a specified term mentioned.
- After that, act of 1814 and act of 1842 repealed acts of 1709 and 1814
- The copyright act of 1911 in England had codified and consolidated the various
earlier copyright acts for different works, then came in 1956 Act
- In India, the first copyright act was passed in 1914, this is nothing but copy of the
copyright act of 1911, England with suitable modifications
- The copyright act of 1957 is the current statute has followed and adopted the
principles and provisions in the UK act of 1956 along with many new provisions.
- Copyright amendment act 1983, 1984 and 1994

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Main Feature of Copyright Act of 1957:

1. Creation of a copyright office and Copyright board to facilitate registration of
Copyright and to settle certain kinds of disputes arising under the Act and for
Compulsory licensing of Copyright
2. Definitions of various categories of work in which copyright subsists and the scope of
the rights conferred on the author under the act
3. Provisions to determine the first ownership of copyright in various categories of
works
4. Term of copyright for different categories of works
5. Provisions relating to assignment of ownership and licensing of copyright including
compulsory licensing in certain circumstances
6. Provisions relating to performing rights of or by societies
7. Broadcast rights
8. International copyrights
9. Definition of Infringement of copyright
10. Exception to the exclusive right conferred on the author or acts, which do not
constitute infringement
11. Author’s special rights
12. Civil and criminal remedies against infringement
13. Remedies against groundless threat of legal proceedings

Works in which copyright subsists:

Section 13 of the Act lists out the works, in which copyright subsists.
• Subject to the provisions of this section and the other provisions of this Act,
copyright shall subsists throughout India in the following classes of works, that is
• Original literary, dramatic, musical and artistic works
• Cinematograph films
• Sound recording
Literary Work includes computer programmes, tables, Compilations including computer
databases
Dramatic work includes any piece for recitation, choreographic work or entertainment in a
dumb show, the scenic arrangement or acting form of which is fixed in writing or otherwise
but does not include a cinematograph film

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Musical work means a work consisting of music and includes any graphical notation of such
work, but does not include any works or any action intended to be sung, spoken or performed
with the music. For an instance, an actor’s movements while rendering the song in a movie
cannot be copyrighted
An Artistic work means a painting, a sculpture, a drawing (including a diagram, map, chart
or plan) an engraving or a photograph, whether or not any such work possess artistic quality a
work of architecture meaning any building or structure having an artistic character or design
or any model for such building or structure
Cinematograph film means any work of usual recording on any medium produced through a
process from which a moving image may be produced by any means and includes a sound
recording accompanying such visual recording and cinematograph shall be constructed as
including any work produced by any process analogous to cinematography including video
film
Sound Recording means recording of sounds from which such sounds may be reproduced
regardless of the medium on which such recording is made or method by which the sounds
are produced.

Copyright in Original Literary work

• The copyright act is not concerned with the origin of ideas but with the expression of
thought and in case of “literary work” with the expression of thought in printing or
writing.
• The originality which is required relates to the expression of thought, but the act does
not require that the expression must be in an original or novel form but that the work
must not be copied from another work i.e., it should originate from the author.

Qualification for subsistence of copyright

• The work is first published in India
• Where the work is first published outside India, the author at the date of publication
must be a citizen of India. If the publication was made after the authors death the
author must have, at the time of death, been a citizen of India
• In the case of unpublished work author is on the date of making of the work, a citizen
of India or domiciled in India

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These conditions do not apply to foreign works or works of International organisations. The
provisions of section 40 empower the Central government to bring foreign works within the
scope of copyright act.
Section 41 lists out the conditions as to when the work of certain international organisation
would be entitled to a copyright throughout India. These are
1. Where
• Any work is made or first published by or under the direction or control of any
organization to which this section applies, and
• There would, apart from this section, be no copyright in the work in India at
the time of the making or, as the case may be, of the first publication thereof,
and
• Either –
o The work is published as aforesaid in pursuance of an agreement in
that behalf with the author, being an agreement which does not reserve
to the author the copyright, if any, in the work, or
o Under section 17 any copyright in the work would belong to the
organisation
There shall, by virtue of this section, be copyright in the work throughout
India
2. Any organisation to which this section applies which at the material time had not the
legal capacity of a body corporate shall have and be deemed at all material times to
have had the legal capacity of a body corporate for the purpose of holding, dealing
with and enforcing copyright and in connection with all illegal proceedings relating to
copyright
3. The organisations to which this section applies are such organisations as the central
Government may declare to be organisations of which one or more sovereign powers
or the Govt or Govts thereof are members to which it is expedient that this section
shall apply

Thus, where the work is first published in India, copyright subsists in India irrespective of
the nationality of the author
But where the work is first published outside India, copyright subsists only if the author is
a citizen of India

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In case of unpublished work, author must be a citizen of India or domiciled in India

Works by foreign authors published outside will get copyright protection by virtue of
India being a member of the Bern Convention and the Universal copyright
Convention.

Where the work is the creation of joint authors, the conditions regarding nationality must
be satisfied by all the authors

Cinematograph films and sound recordings are generally based on some literary,
dramatic, musical or other works in which copyright may be subsisting. In such cases two
independent copyrights subsist simultaneously.

Software is an intellectual property:

Software may be intellectual property but such personal intellectual property
contained in a medium is bought and sold. It is an article of value. It is sold in various forms
like – Disks, CD-ROMs and Magnetic tapes etc. Each one of the mediums in which the IP is
contained is a marketable commodity. They are visible to the senses
A programme containing instructions in computer language is subject matter of a
licence. It has its value to the buyer. It is useful to the person who intends to use the hardware
viz. the computer in an effective manner so as to enable him to obtain the desired results.
These mediums containing the intellectual property are not only easily available in the market
for a price but are circulated as a commodity in the market. Only because an instructions
manual designed to instruct use and installation of the supplier program is supplied with the
software, the same would not necessarily mean that it would cease to be a good. Such
instructions contained in the manual are supplied with several other goods including
electronic ones.

The distinction between Contract of service and contract for service

Contract of service:
• Where a man employs another to do work for him under his control so that he can
direct the time when the work shall be done, the means to be adopted to bring about
the end, and the method in which the work shall be arrived at, then the contract is a
contract of service.

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• The status of the author is that of an employee, i.e., the employer is the first owner of
copyright
Contract for service:
• If a person employees another to do a certain work but leaves it to the other to decide
how that work shall be done, what steps shall be taken to produce that desired effect,
then, then it is a contract for service
• The employee status is that of an independent contract who himself decides about the
manner of doing work, in such cases the copyright vests in him and not the employer

Piracy
• the unauthorized use or reproduction of another's work
• to make quick money and avoid payment of legitimate taxes and royalties
• three types- piracy of printed word, piracy of sound recording and piracy of
cinematograph films

Nature of rights conferred by copyright

1. Statutory rights
• The copyright in a work is a creation of statute. A person owns a copyright
because the law recognises the existence of such a right. The rights which an
author of a work has by virtue of creating the work are well defined.
2. Negative rights
• It stops others from exploiting the work of the author for their own benefit
without the consent or licence of the author. It does not confer any positive
right on the author himself.
3. Multiple rights
• Copyright is not a single right but a bundle of rights which can exist and be
exploited independently. The nature of these multiple rights depends upon the
categories of works, namely
i. Literary, dramatic and musical works
ii. Original artistic works
iii. Cinematograph films
iv. Sound recording

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• The literary, dramatic and musical works are grouped together for the purpose
of defining these exclusive rights. The rights relating to artistic works are
distinct from those of cinematograph films and sound recording
4. Economic rights
• The exploitation of the work by the author by exercising these rights may
bring economic benefit
• The author may exploit the work himself or licence others to exploit any one
or more of the rights for a consideration which may be in form of royalty, a
lump-sum payment
5. Moral rights
• The term ‘moral right’ derives from the French expression ‘droit moral’ and is
a misnomer in the sense that moral rights are neither the opposite of immoral
rights nor of legal rights. These moral rights are –
i. Integrity rights: important of moral rights, it gives the author the right
to prevent alteration, destruction and other actions that may damage
the authors reputation
ii. Divulgation: It means right of author to publish a work, or to withhold
it from dissemination. It gives the author the right to decide whether to
publish or not to publish the work
iii. Attribution right: right to claim authorship of a published or exhibited
work
iv. Retraction work: right to withdraw a published work from distribution
if it no longer represents the views of the author
Infringement of Copyright:
• A copyright confers exclusive right on the copyright owner to the reproduction of the
work in a material form, storing the work in any medium by electronics means,
publication of the work in public, making of its adaptation and translations
• These rights are conferred on the owner of the copyright to enable him to reap
monetary benefits.
• If any of the above acts are carried out by a person other than the owner of the
copyright, without a licence from the owner, it constitutes infringement of the
copyright

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Acts which constitute infringement:

• Since the forms of creative works are more, i.e., literary, dramatic, musical, artistic,
etc. the acts which constitute infringement would depend upon the nature of the work
• Section 51 of the Act defines the infringement of a copyright in general
• According to section 51, copyright in a work shall be deemed to be infringed
1. When a person without a license from the owner or the Registrar of copyrights
does anything, the exclusive right to do which is by this act conferred upon the
owner of copyright, or permits for profit, any place to be used for the
communication of the work to the public, unless he was not aware and had no
reasonable ground for believing that such communication would be an
infringement of copyright; or
2. When any person
• Makes for sale or hires or sells or lets for hire by way of trade displays or
offers for sale or hire any infringing copies of the work covered by
copyright; or
• Distributes, either for the purpose of trade or to such an extent as to affect
prejudicially the owner of the copyright any infringing copies of the work
covered by copyright; or
• Exhibits in public by way of trade any infringing copies of the work; or
• Imports into India any infringing copies of the work except the copy any
work for the private and domestic use of the importer

Infringement of Artistic Work

Artistic work means:
i. A painting, sculpture, drawing (including a diagram, map, chart or plan) engraving or
photographs whether or not only such work possesses artistic quality
ii. A work of architecture
iii. Any other work of artistic craftsmanship

Infringement of artistic work

Infringement of copyright consists of doing or authorising the doing of the following acts
without the consent or licence of the owner:-

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1. To reproduce the work in any material form including the depiction in 3D to 2D form
or 2D to 3D form.
2. To communicate the work to the public – making the work available to public for
being seen or heard or enjoyed directly or any other form of display. This includes
communication through satellite or cable
3. To issue copies of the work to the public not being copies already in circulation
4. To include the work in any cinematograph films
5. To make an adaptation of the work
a. Adaptation means the conversion of the work into dramatic work

How infringement in artistic work is determined?

Any reproduction is infringement
• In the case of King Features Syndicate v/s Kleeman, (1941) 58 RPC 207, “a
reproduction copied not directly from the original artistic work or a sketch of it but
copied from a reproduction in material form derived directly or indirectly from the
original work, is an infringement of the original artistic work
• In the case of Associated Electronics & Electricals v/s Sharp Tools, 1995 PTC 85,
“the surest test to determine whether or not there has been a violation of copyright is
to see if the reader, spectator or viewer after reading or seeing both the works would
get an unmistakable impression that the subsequent work appears to be a copy of the
first.
• A copyright in a painting is infringed when a person copies from the original painting
or picture of the painting.
o Ex-a photographer took a photograph of M.F. Hussain, then paints the same
and sell that copies
• Infringement of a painting or a picture can be detected by making close comparison
between two works
Photograph:
According to sec17(b), if a person gets his photograph taken by a photographer on
payment. The copyright in the photograph belongs to such a person. The publication or
exhibition of the photograph at any place including photographers shop would amount to
infringement.

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• A wedding photograph cannot be displayed in a photographer’s shop without the

express or implied consent of the parties

Drawing:
A drawing including a diagram, map, chart or plan within the definition of artistic work and
copyright substitutes in it if it is original. Drawings as complicated as engineering and
industrial drawing can be protected by a copyright. Drawings of machines or machine parts
or any drawing on the basis of which three dimensional objects are made.

3D representation of a Drawing:
Reproduction of 3D representation constitutes infringement. Indirect infringement occur
when a 3D drawing is reduced to a 2D form or vice-versa

Architectural drawings:
The architectural drawings can be infringed when a building or structure is constructed on the
basis of such drawings. When a building is reconstructed on the basis of pre-existing drawing
on which original building was constructed, it is not an infringement provided the
construction was made with the consnt or licence of the owner of the copyright.
• If a building similar to the Lotus Temple in Delhi is made by any other architect, it
would be infringement of copyright of the architect who made the plan for the Lotus
Temple. However, there would be no infringement if the same Lotus Temple in Delhi
is reconstructed or repaired in accordance with the original drawing.

Industrial Drawings:
Strict copyright protection of industrial drawings would prohibit beneficial use of such
drawings. Hence, the concept of infringement as far as such drawings are concerned is not
very rigid.

Remedies against Infringement of Copyrights:

Kinds of Remedies:
1. Civil remedies
i. Anton pillar order

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• The procedure of law always provides equal opportunities to both the parties
to present their case.
• However in certain cases the Court on an application by the plaintiff, pass an
ex-parte (in the interest of one side only) order requiring the defendant to
allow the plaintiff accompanied by attorney to enter his premises and make an
inspection of relevant documents and articles and take copies and take copies
thereof or remove them for safe custody
• This type of orders are necessary when there exists an apprehension in the
mind of the plaintiff and the court that following the regular procedure would
give time to the defendant to destroy relevant documents and of the articles
(copies), defeating the ends of justice
• This order is passed very cautiously by the court; only when the plaintiff in his
application makes the fullest possible disclosure of all material facts within his
knowledge and the court is convinced thereby.
ii. Interlocutory Injunction
iii. Damages or account of profit

2. Criminal remedies
• Imprisonment of the accused or imposition of fine or both
3. Administrative remedies
• Moving to the Registrar of copyright to ban the import of infringing copies

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Trade Mark

Definition – Trademark is a visual representation attached to goods for the purpose of

indicating their trade origin.
The functions of a Trade Mark
• It identifies the product and its origin
• It guarantees its quality
• It advertises the product
• It creates an image of the product in the minds of the public, consumers or the
prospective consumers of such goods
Essential elements of the Trademark:
1. Distinctiveness of the trademark
2. The trademark should be an invented word
3. The trademark should be easy to pronounce and remember
4. In case of device mark, the device should be capable of being described by a single
word
5. It must be easy to spell correctly and write legibly
6. It should not be descriptive but may be suggestive of the quality of goods
7. It should be short
8. It should appeal to the eye as well as the ear
9. It should satisfy the requirements of registration
10. It should not belong to the class of marks prohibited for registration

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Procedure for registration of Trademark:

Present a written application in the office

Options
Accepted absolutely rejected absolutely conditional acceptance

Registrar shall record the grounds

If application accepted in error

Correction if any error Withdrawal of acceptance

Advertisement of application

Written opposition Not-opposed

Notice of opposition

If opposition decided in favour of applicant

If not in favour

Condition and limitation to registration Certificate of registration issued

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Essentials of Infringement:
• The taking of any essential feature of the mark or taking the whole of the mark
and then making a few additions and alterations would constitute infringement
• The infringing mark must be used in the course of trade, i.e., in a regular trade
wherein the proprietor of the mark is engaged
• The use of the infringing mark must be printed or usual representation of the
mark in advertisements, invoices or bills.
o Any oral use of the trade mark is not infringement
• Any or all of the above acts would constitute infringement if the same is done
such a manner as to sender the use of the mark likely to be taken as being used
as a trade mark
Remedies against infringement of trade mark:
Kinds of Remedies:
1. Civil remedies
i. Anton pillar order
ii. Interlocutory Injunction
iii. Damages or account of profit
2. Criminal remedies
• Complaint may be made against the person causing infringement
3. Administrative remedies
• Opposing the registration of a deceptively similar trademark when the trade
mark registry is in the process of considering the grant of a trademark, can
protect the trademark
• The registry can also be moved for removal of a deceptively similar trademark
if registered.

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4. Cyber Law
Introduction: (Why Cyber Law become more important?)
The most important and significant advancement made by the mankind from the beginning of
civilization to till date is the development of Internet
In 1969, America’s department of defence commissioned the construction of a super network
called ARPANET (Advanced Research Projects Agency Network). ARPANET was intended
as a military network of 40 computers connected by a web of links and lines. This network
slowly grew and the Internet was born. By 1981, over 200 computers were connected around
the world. Today the figure runs into millions.
The real power of today’s Internet is that it is available to anyone with a computer and a
telephone line. It places in an individual’s hand the immense and invaluable power of
information and communication. Its usage has significantly increased over the past few years.
When Internet was first developed, the founding fathers hardly had any inkling
(suspicion/clue) that Internet could transform itself into an pervading revolution which could
be misused for criminal activities and which required regulation. Today, there are many
disturbing thing happening in cyberspace. Due to the anonymous nature of the Internet, it is
possible to engage in a variety of criminal activities with impunity, and people with
intelligence have been grossly misusing Internet to perpetuate criminal activities in
cyberspace. Because of this, Cyber law becomes more important.

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Definition of Cyber Law:

Internet is believed to be full of anarchy and a system of law and regulation therein seems
contradictory. However, cyberspace is governed by a system of law and regulation called
Cyber law. There is no single exhaustive definition of the term “Cyberlaw”. Author gave a
definition of Cyberlaw in 1996, which is broadly accepted, as follows:-
“Cyberlaw is a generic term, which refers to all the legal and regulatory aspects of Internet
and the World Wide Web (WWW). Anything concerned with or related to or emanating from
any legal aspects or issues concerning any activity of netizens (a person who uses the
internet) and others, in Cyberspace comes within the ambit of Cyberlaw”.
{“The internet is a huge network of computers all connected together. The World Wide
Web ('www' or 'web' for short) is a collection of webpages found on this network of
computers”.}

Cyberspace:
Cyberspace allows users to share information, interact, swap ideas, play games, engage in
discussions or social forums, conduct business and create intuitive media, among many other
activities. The term cyberspace was initially introduced by William Gibson in his 1984
book, “Neuromancer”. Gibson criticized the term in later years, calling it “evocative and
essentially meaningless.” Nevertheless, the term is still widely used to describe any facility or
feature that is linked to the Internet.
According to many IT specialists and experts, including F. Randall Farmer and Chip
Morningstar, cyberspace has gained popularity as a medium for social interaction, rather than
its technical execution and implementation.
The growth of Electronic Commerce influences the need for effective regulatory mechanisms
and legal infrastructure for successful Electronics Commerce. Which are come within the
domain of Cyberlaw?

Cyber Law is important because it touches almost all aspects of transactions and
activities through Internet and World Wide Web in Cyberspace
As the nature and scope of Internet and most of our activities happen in cyberspace, Cyber
Law concerns everyone. From the time you register your Domain Name, set up and promote
your website and conduct electronic commerce transaction on the site, at every point time

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there are various Cyberlaw issues involved. You may feel that Cyberlaw is not so important /
relevant at this time later you have to consider Cyberlaw for the sake of your benefits.
Example: You may knowingly or unknowingly book a domain name say www.xyz.com
which may be the trade mark of any other company which may be the trade mark of some
other company or belongs to any person or some organization say B. Domain names are
allotted on first come first served basis. But you may be involved by the B in a cyber legal
dispute which may be allege that you are deliberately involved in the practice of
Cybersquatting (the practice of knowingly registering the trade mark of any legal entity,
company or person with intension of holding on to it and thereafter selling the same to the
said legal entity or company or person at a handsome premium). You may also be involved
in cyber litigation as the concerned party, B may approach the World Intellectual Property
Organization (WIPO) for adjudicating (resolving) the matter and WIPO, By a summary
procedure, may direct you to relinquish (surrender) the said domain to the concerned party B
provided that Party B has to produce all documentary and other evidence to substantiate
(validate) its claim to the concerned Domain name. This example show the importance of
Cyberlaw for us.

Why Cyberlaw in India?

In 49th year of Indian independence Internet was commercially introduced in India and to
regulate this cyberlaw was enacted.
Factors that influence the need for cyberlaw in India are
• India has an extremely detailed and well defined legal system but the birth of Internet
creates new and complex legal issues. To resolve this, it is required to enact cyberlaw
• The existing law of India could not be interpreted in the light of the emerging
cyberspace
• None of the existing law gave any legal validity or sanction to the activities in the
cyberspace
o Eg, email does not have legal sanctity
• Internet requires an enabling and supportive legal infrastructure in tune with the times
o Eg, E-Commerce
• In addition to that General Assembly of UNO adopted the United Nations
Commission on International Trade Laws (UNCITRAL) Model Law on Electronic

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Commerce on January 30, 1997. This resolution recommended to the member nations
to enact and modify their laws according to the Model Law

UN Model Law:
• The main objective is to provide a common legal platform to the countries to model
their domestic laws relating to electronic commerce.
• The idea behind is to have a functional equivalent approach.
• It basically provides a media-neutral environment in which other laws could operate
• This law is basically on Electronic Commerce, but it does not define Electronic
Commerce
• But Art 2(b) defines electronic data interchange, meaning ; “the electronic transfer
from computer to computer of information using an agreed standard to structure the
information”. It includes all types of transfer of information between computers
• Art 5 – information shall not be denied legal effect, validity or enforceability solely
on grounds that it is in the form of a data message
• Art 6 – where the law requires information to be in writing, the requirement shall be
met where data is accessible so as to be useable for subsequent reference
• --------

Based on the recommendation from UN Model law, Govt of India decided to enact a law that
would make e-contracts legal, electronic records admissible in evidence and which would
make required changes to some other existing laws. Consequently, three areas were
identified-
• Contract
• Indian Penal Code
• Evidence act
Since major part fall under concurrent list and all of them did not apply to Jammu and
Kashmir, therefore, Govt., had invoke a special power granted to Parliament to make a law
for India on the Model Law.
The parliament under Art 253 of the Constitution of India passed India’s first Cyber Law.
The art 253 states that, “Notwithstanding anything in the foregoing provisions of this chapter,
Parliament has power to make any law for the whole or any part of the territory of India for

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implementing any treaty, agreement or convention with any other country or countries or any
decision made at any international conference, association or other body.”
• Information Technology (IT) bill, 1999 was the beginning of Model Law in India
• The Govt., of India responded by coming up with the draft of the first Cyberlaw of
India – The Information Technology bill, 1999
Information Technology (IT) Bill:
• To provide the necessary legal and business infrastructure required for enabling e-
commerce in India
• The bill was tabled in parliament in December 1999
• IT bill 1999, is referred to standing committee of Science and Technology,
Environment and Forests
• The standing committee submitted its report to parliament on 12th May, 2000 with
recommendations
• The Govt., accepted some recommendations and reintroduce the IT Bill 2000 on both
houses of Parliament on 15th May 2000
• 17th May 2000, IT Bill 2000 passed by both houses of Parliament
• It received the President’s assent on 9th June, 2000 and was implemented on 17th
October, 2000.
The Information Technology Act, 2000 is the first amongst a series of legislations in
India.

Evolving Cyberlaw Practices – A Guide for Corporates

The need for Cyberlaw arose because of the uniqueness of the medium in which the internet
functions, requiring entirely different approaches for controlling, regulating and facilitating
electronic communication and commerce. Numerous practices concerning various issues in
the field of Cyberlaw are constantly evolving.
Here, we consider some of the evolving practices in Cyberlaw from the perspective of the
corporate sector.

Domain Name Issues:

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Cybersquatting means when someone illegally holds the domain name of another. Holding of
others domain name is profitable and it is a common practice to earn more money. Therefore,
legal remedy is required against Cybersquatting.
Online arbitration is one of the remedies available for this purpose.
{
Online arbitration is settlement of disputes by chosen parties through emails and other
modes of technology. It is a process by which the ease and the benefits of alternative dispute
resolution in India is enhanced by allowing the parties to settle the dispute
through electronic modes

Arbitration is the settlement of disputes by a tribunal chosen by the parties themselves,

rather than by the Courts constituted by the State. The popularity of arbitration as a mode of
settling disputes is because arbitration is regarded as a speedier, more informal and is cheaper
than conventional judicial procedure and provides a forum more convenient to the parties.

The increasing popularity and dependence on the internet throughout the world has made the
number of disputes arising from e-commerce, domain names registrations, etc. even more
common. Thus, the internet can also be used in an effective manner to neutralize such issues
by way of online arbitration.
}
Civil remedies includes suit for passing of goods and services under the Trade and
Merchandise Marks Act, 1958 and dilution of trade mark or label as well as suit for illegal
use of the domain name.
If domain name has been Cybersquatted, a couple of remedies are available
• Filing a suit for injunction restraining the defendant from using the same domain
• At the same time, a suit for injunction restraining infringement of copyright can also
be filed
• Other remedies are Suit under the Trade and Merchandise Marks Act, 1958,
Copyright Act, 1957 and criminal complaints for infringement of copyright or
trademark

In addition to that, the remedy under the Uniform domain Names Disputes Resolution Policy
of the Internet Corporation for Assigned Numbers and Names (ICANN) can also be

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exercised. Authorized service provider providing online arbitration, on payment of prescribed

processing fee, can be approached under this policy for transfer of the domain name back
from the cybersquatter.
At present, online arbitration is not very comprehensive and it also expensive from Indian
Standards.
The protection of domain names can be done by filing an application for registering the
domain name as trade mark before Indian Registrar of Trademarks and also before United
States Patent and Trademark office (USPTO)
It is also necessary to register all similar domain names like .com, .net, .info, .biz etc, with
respect to India .co.in
In case a domain name is deceptively similar to a famous brand; it is required to put bold
Disclaimer on the home page to avoid allegation of misleading deception.
The Information Technology Act, 2000, fails to address the issues of Domain Names as well
as the rights of Domain name owners

Website Precautions:
• Website containing valuable content and information should begin with an opening
agreement. It should inform the visitors about the nature of contents on the website to
avoid unwanted conditions
• It is required to place an undertaking at the homepage of website. It has an effect that
the netizens entering the website out of his own choice and agrees not hold the
website, its owners and administrators for any cause. This is a legal precaution and
unless the netizen clicks on the button “I accept”, he/she should not be allowed to
come into the site. Through this, the netizen is stopped from pulling the website, its
owners and administrators into an unwanted litigation
• Website must contain terms & conditions of use and details of legal and liability
issues. It clarify the use of the website is at risk and liability of the visitor, in case of
any computer contaminant being released, the website or owners will not be
responsible.
• In case the website has a search facility or a search engine, a specific declaration
needs to be given on the homepage. It states that “the search engine is only spidering
the web by means of available technology and is not responsible for the search results
or the contents of the websites mentioned in the search results.

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• In an e-commerce website, specific jurisdiction has to be explicitly spelt out to avoid

unwanted litigation
• The jurisdiction of IT Act, 2000 extended even outside the India

Disclaimer:
• It is also important for any website to legally disclaim any liability arising from the
infringement of trademark or copyright by a visitor
• It should be specific to Indian Law
• It should limit the liability to a fixed financial amount
• It should be clear so as to avoid the visiting of consequences of litigations on issues
relating to deceptive similarity

Protection of Intellectual Property Rights:

Liability for content and for action arises in case of copying of content. This causes
infringement of copyrights. IPRs are not covered under the IT Act 2000
Any and every web page containing original contents and design has inherent copy right and
the same copyright exists on the Internet. There is no need to register a copyright
However, if you have a big website, it is required to applied for copyrights (relevant
information) in the local Registrar of Copyright. This is necessary to create legal proof of
original categories and contents on the website. If we have used outside information, credit
must be given to the corresponding source
If your website gives links to other websites and they open within the frame of your website,
appropriate copyright disclaimers should given, stating that “ the web pages the visitor is
viewing is not your property and the copyright for the same vests in the respective owners”.
Similarly, for using famous trademarks in the website.
In case of infringement, we can suit for permanent Injunction

Payments:
There is no legal status or validity for electronic payments or electronic fund transfer,
because the IT Act, 2000 is silent about Payment issues.
Negotiable instruments are excluded from the applicability of the IT Act 2000. All disputes
related to E-Commerce transactions involving negotiable instruments will go to civil courts.
It will divert the purpose and object of electronic commerce

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{A negotiable instrument is a document guaranteeing the payment of a specific amount

of money, either on demand, or at a set time, with the payer usually named on the
document.}

In addition to that, The IT Act, 2000 does not recognise any kinds of electronic payment
systems like digital cash, electronic money, digital cash etc.

Privacy:
The IT Act, 2000 is silent on the issues of privacy. But Section 72 of the IT Act, 2000 deals
with the privacy. Section 72 states that, “if any person, who in pursuance of any of the powers
conferred under the IT Act, rules or regulations made thereunder, has secured access to any
electronic record, book, register, correspondence, information, document or other material
without the consent of the person concerned, discloses such electronic record, book, register,
correspondence, information, document or other material to any other person, the same has
been declared as a penal offence punishable two years imprisonment or with fine up to one
lakh rupees”.
This provision deals with the breach of privacy by only authorised statutory entities or
officers under the IT Act, 2000 and has limited application.
But the issue of privacy of netizens is completely not covered under the IT Act, 2000. In
addition to that there is no privacy law in our Country. The Supreme Court of India
interpreted the right to privacy as an integral part of Fundamental Right to life under Art. 21
of Indian constitution. However, the protection is available only against state action.
Therefore, it becomes very important to be careful about the privacy on the net.

Employer has to take care about privacy of the employees when communicating through the
official emails and Emails should have a disclaimer at the end to state that email message is
only for intended user and not to intrude upon any person’s privacy

E-Format:
The legal requirements of any information/any other matter being in writing/the
typewritten/printed form shall be deemed have been satisfied if such information or matter is
–
1. Rendered or made available in the electronic form; and

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2. Accessible so as to be usable for a subsequent reference.

Any subscriber of a digital signature may authenticate an electronic record by affixing his
Digital Signatures on it. Any person by the use of the subscriber can verify the electronic
record.
The Controller of certifying authorities has to supervise all such activities. He shall lay down
standards & conditions and also specify the various forms and contents of Digital Signature
Certificates.

Companies can legally retain the information in the electronic form, if:
1. The information contained therein remains accessible so as to be usable for a
subsequent reference
2. The electronic record is retained in the format in which it was originally generated,
sent or received or in a format, which can be demonstrated to represent accurately the
information originally generated, sent or received
3. The details for the identification of the origin, destination, date and time of dispatch or
receipt of such electronic record or available in the electronic record.

The IT Act, 2000 recognized e-format to be legal and valid. This act enables companies to
file any form, application or any other document with any office, authority, body or agency
owned or controlled by the appropriate Government

If a company wants to become a certifying authority, it has to follow mandatory requirements

set by the IT Act, 2000 under the supervision of the Controller of Certifying Authorities.
The security issues are addressed in the IT Act, 2000. The Indian Cyber Law gives legal
recognition to secure digital signature.

Cyber Crimes:
Categories:
1. Cybercrime against property
2. Cybercrime against person
3. Cybercrime against Nation

Economic cyber offences are becoming extremely prevalent/predominant.

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Today cybercrimes include hacking, damages to computer, computer source code,

cyberstalking, child pornography, cyber harassment, transmission of computer viruses and
harmful programmes and cyber terrorism.

According to IT Act, 2000, cyber offences are declared as penal offences punishable with
imprisonment and fine.

Digital Signatures:
{
The IT Act provides that any subscriber can authenticate an electronic record by
affixing his digital signature. A digital signature requires the authenticity of a sender,
the message’s integrity and non-repudiation. This led to the acceptance of cryptography
}
• Foundation for Global e-commerce
• Defined under section 2(1) (p) of the IT Act, 2000
Meaning: Authentication of any electronic record by a subscriber by means of an electronic
method or procedure in accordance with the provisions of section 3 of IT Act, 2000. Section
3 defines authentication of e-record and states that, “it shall be affected by the use of
asymmetric crypto system and hash function, which envelops and transforms the initial e-
record into another e-record.
Digital signatures have already been launched in India.

Linking Policy:
Websites should have a specific linking policy in case it provides link, the policy should
specifically state the crux (root) of understanding or agreement with linking websites. The
links are purely given as a goodwill reciprocal gesture and at no points is the website
responsible for the contents of the links. The website does not seek to misappropriate the
intellectual property rights of linked websites. The linking policy should disclaim any
liability for damage caused to netizens by the links.

Taxation:
• Taxation is a very contentious issue.
• Electronic taxation give rise to some practical difficulties such as

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o Do dot coms pay tax on their web related activities or products?

o Are online transactions in India taxable?
• IT Act, 2000 is completely silent on the issue of taxation of electronic commerce and
does not answer any of these questions
• IT Act, 2000 has not amended the Income Tax Act, 1961and Income Tax Act,
1961does not provide any provision for e-commerce

In addition,
• Specific agreement should be signed with web hosting services.
• Web-space should be predetermined and well defined
• Important to include liability for third party data and information

Section 79 IT Act will bring web hosting within the ambit of the definition of a network
service provider as an intermediate. Undertaking should be obtained from the clients for the
information/contents hosted on their websites.

Companies must endeavour to have Cyberlaw audit to find out their compliance status of
various cyber legal provisions.

Privacy in Indian cyber space

As we know that, Man is a social animal even though has individual privacy. Therefore, it is
required to protect the privacy of the individuals. Today, many countries have special
legislations relating to protection of individual privacy.
When Internet as a medium, there will be a presence of privacy and it is required to protect.
There is no comprehensive legislation on privacy in India. It has been left to the judiciary to
interpret privacy within the existing laws. But Supreme Court of India upheld the Right to
Privacy as an integral part of the Fundamental Rights under Art.21 of Indian Constitution.
The IT Act, 2000 does not define privacy. It refers to privacy only once at section 72 as
“Breach of confidentiality and privacy – save as otherwise provided in this act or any other
law for the time being in force, any person who in pursuant (in accordance with) of any of the
powers conferred under the IT Act, rules or regulations made thereunder, has secured access
to any electronic record, book, register, correspondence, information, document or other
material without the consent of the person concerned, discloses such electronic record, book,

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register, correspondence, information, document or other material to any other person, the
same has been declared as a penal offence punishable two years imprisonment or with fine
up to one lakh rupees, or with both”
• According to this, law related to privacy is restricted to only those who have been
conferred powers under IT Act, 2000
• It does not have any bearing on violation of an individual’s privacy in cyberspace
• Spamming or sending unsolicited emails to others is an example of violation of
individual privacy. In addition to that lot of websites collect information of netizens
and sell it for commercial purpose or servers of websites containing information’s are
hacked and sold it for different companies, who then sends unsolicited emails is also
violation of individual privacy
In India, individual netizens are move to a court for monetary damages for violation of
their individual privacy

• It is important that Government has to legislate about privacy in cyberspace

• Websites must follow strict guidelines relates to individual privacy
• Website must give clear notice to netizens for collecting information
• What kind of information?
• What purpose?
• How the collected information will be utilized
• Netizens has a choice to state whether the information being collected should be
used for other than the intended purpose
• Cyberlaw should provide facility of accessing information given to the website to
the netizens for any addition, modification or deletion of part or entire information
• It is essential for all websites to handle the data collected from the netizens
• Cyber legislation to be only solution to protect privacy. In addition to that it is
necessary to educate the netizens

Terrorism & Cyber Crime

Use of Internet to plan and carryout terrorist activities is nothing but cybercrime.
Crimes carryout through internets are:
• Unauthorized use of computer system

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• Hacking
• Denial of service attacks
• Virus/Malware transmission
• Phishing - Phishing is a cybercrime in which a target or targets are contacted by
email, telephone or text message by someone posing as a legitimate institution to lure
individuals into providing sensitive data such as personally identifiable information,
banking and credit card details, and passwords.
• Botnet “Armies” and attacks - A botnet is a collection of internet-connected devices
that are corrupted or hijacked to carry out malicious activities.
• Terrorist Use of the Internet
• Crime in Virtual Worlds

Effect of terrorism on public domain:

Beyond the economic consequences, society relies on computerized system for almost
everything in life
• Air, train and bus traffic control
• Medical service coordination
• Banking, Energy,
• Government and national security
• When countries depend on computer-based systems and globally interconnected
networks for their critical infrastructure,
• it exposes us to new threats.

Terrorism activates through Internet:

• Publication of terrorist ideologies and ideas - propaganda
• Raising funds/terrorist financing - money transfer/e-cash
• Recruiting new members, finding each other
• Launching threat or intimidation campaigns
• Communication among members-P2P, SMS, VOIP
• Obtaining operational information – targeting/attacking
• Coordinating, planning and discussing terrorist actions
• Logistics - ordering supplies, car/apt. rentals, explosive, chemical/biological
components

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Cyber Theft and the Indian Telegraph Act, 1885

First cybercrime happened in the year 2000 in Delhi by using Internet illegally. The
convicted were arrested for violating the provisions of the Indian Telegraph act, 1885, at a
time when the Indian Cyberlaw had not been passed. With respect to this, IT Act, 2000 does
not dwell upon the offence of cyber theft. The arrest of India’s first two cyber thieves raises
number of important Cyberlaw issues. Can The Indian Telegraph Act, 1885 be extended to
cyberspace?
India’s first Cyberlaw, the information Technology act 2000 does not purport to amend either
the Indian Telegraph act, or section 378 & 379 of Indian Penal Code, 1860 that defines the
offence and punishment for theft.
The important point that arises for consideration is whether the Indian Telegraph Act in its
present form is capable of being interpreted in today’s cyber age to include cyberspace within
its ambit?
The Indian Telegraph Act, 1885 was enacted a long time ago and its section 3 defines the
telegraph. The section 25 of Telegraph act, which was alleged to have been invoked in
India’s first cyber trail, refers to intentionally damaging or tampering with telegraphs. It
provides “if any person, intending –
1. To prevent or obstruct the transmission or delivery of any message, or
2. To intercept or to acquaint himself with the contents of any message, or
3. To commit mischief,
Damages, removes, tampers with or touches any battery, machinery, telegraph line
post or other thing whatever, being part of or used in or about any telegraph or in the
working thereof, he shall be punished with imprisonment for a term which may
extend to three years, or with fine, or with both”.
The definition of telegraph cannot be extended to include Internet and Cyberspace within its
sphere. Also, it is difficult to bring the cybercrime of stealing of Internet hours within the
sphere of Indian Telegraph Act, 1885.

Now, the question is, Can the provision of theft as defined in IPC be extended to cyberspace
without amendment?
Section 378 of IPC defines theft and 379 refer to the punishment for theft. The IPC 378
defines, “Theft – whoever, intending to take dishonesty any moveable property out of the

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possession of any person without that person’s consent. Moves that property in order to such
taking, is said to commit theft.”

This section refers to the theft only for moveable property. But can Internet time be brought
within the sphere of the property, moveable or immoveable? From past time cannot be
considered as a property.

Thus, the issue of cyber theft arises several Cyberlaw issues, which would have to be
necessarily addressed, after much thought and deliberation, in order to achieve the goal of a
crime free.

Cyber Stalking
Cyberstalking is one of the latest crimes that have emerged in India.
Ritu Kohli’s case is the first case of cyber stalking, which was registered by Economic
offences Wing of Delhi Police under Section 509 IPC for outraging the modesty of a woman

Cyberstalking is defined as unwarranted, threatening behavioural patterns or advances

directed by one Internet user against another user with the purpose of harassing the other
user, by using the medium of Internet.
The IT Act, 2000 does not contain any provision relating to Cyberstalkig. The emergence of
cyberstalking siganls to enact new provisions for the prevention

Unit-5

Protection of Indian Children online:

• Children are the foundation of any society.
• The IT Act, 2000 does not mention anything about protecting children online
• Need to enact appropriate legislation to protect children
• Need to encourage the concept of parental guidance
• Need to make parents aware about the different ways in which their children can be
abused on the Internet
• Parents need to be educated about the tremendous negative impact on the psyche of
the child

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• Govt. needs to start aggressive campaigns amongst schools to educate children about
online child abuse
• Need for appropriate orientation programmes in different schools to educate children
on their rights and duties on the Internet
• Need to empower the children of our country, who have the advantage of accessing
the Internet
Spam:
Spam is the practice of sending unsolicited, mass emails that are often advertisement or
solicitations sent via email or others online means to Internet users.
Effects on the public World:
• Causes innumerable problems in the world
• Spam poses a real threat to the viability of e-mail and can be detrimental to the
interests of e-commerce entities
• Puts strain on the productivity, time and resources of Internet service providers and
corporate networks
• Used to send viruses that can cripple networks and cause damage, further killing the
credibility and usefulness of e-mails
• The cause costs of these spam e-mails are conveniently shifted on to the recipients
• Etc.

The Spam e-mails have invaded the internet space at a large scale and have become nuisance.
Therefore, it is essential to enact legislation; it ensures that customers or recipients receive e-
mails only from trusted senders and that they can be protected from unwarranted e-mails.
Across the world countries like USA, Australia and UK enacted laws to protect customers
from Spam e-mails.
India’s cyberlaw, the Information Technology Act, 2000 does not really deal with the issue of
Spam. It means Spam is not covered under the IT Act, 2000. But Spam that contains
pornographic material can come under the purview of the ACT by falling within the ambit of
section 67, which provides as follows:
“Whoever publishes or transmits or cause to be published in the electronic form, any material
which is lascivious or appeals to the prurient interest or if its effect is such as to tend to
deprave and corrupt persons who are likely, having regard all relevant circumstances, to read,
see or hear the matter contained or embodied it, shall be punished on first conviction with

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imprisonment of either description for a term which may extend to 5 years and with fine
which extend to one lakh rupees (100000/-) and in the event of a second or subsequent
conviction with imprisonment of either description for a term which may extend to ten years
and also with fine which may extend to two lakh rupees (200000/-).”

No other feature of spamming covered by the IT Act, 2000. Therefore, it is essential to enact
anti-spam law. Instead of enacting new law for anti-spam, Govt., has interested to amend IT
Act, 2000 and incorporate anti-spam provision.
The essential features which the Indian anti-spam legislation should incorporate are as
follows
• Specifically for regulating spam not as general
• Spam has to be defined, even if only to say that spam is “Unsolovited Commercial
Electronic Mail”. In addition to that, the legislation is also define terms like,
‘electronic mail’, electronic mail service provider, consent, established business
relationship and unsolicited commercial electronic mail.
• The sending of commercial mail must be prohibited if it is sent;
o Without consent
o With inaccurate sender information
o With deceptive subject headings
• Consent of recipients

Issues relating to spam and data protection are interlinked and cannot be separated
from each other:
• Certain kinds of spam e-mails lead to introduction of undesirable, malicious computer
programs and viruses or contaminated programmes in the computer system, which
lead to deletion, erosion and destruction of data. This continues to occur despite the
usage of filter and antivirus programs. As such, there is a need for providing a real
and effective remedy against spammers in the context of the protection of data in
India.
• If the problem of spam is not tackled now, then it is possible that it would continue to
drain valuable resources, lead to inefficiency in the system and hamper the industry in
the long run.

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Contempt in cyber space

When some directions or judgments are not obeyed, the courts exercise contempt jurisdiction
to punish any person who disobeys the orders or directions of the court.
Contempt means an action in violation of any judicial order or pronouncement with the aim
of undermining the authority of law and with the intention of defying the process of law.

Now the questions are,

Can there be contempt committed in cyberspace?
Can the contempt jurisdiction of any court be acceptable and enforceable in
cyberspace?
By the application of the real world analogy into cyberspace, automatically we can say that
any order of any court, if not obeyed in cyberspace is open to contempt action by the court.
The writ of the judicial order is valid within the territorial jurisdiction of the court. The
territorial jurisdiction of the court will also include jurisdiction over air and Cyberspace &
computer networks. Therefore, any court presumes that it has jurisdiction over cyberspace. If
the judicial order is not obeyed within cyberspace by any one, then he/she is liable to be
punished by the court in the exercise of its contempt jurisdiction. And also cyberspace is
accessible through computers in the real world and that could be the point where the
contempt jurisdiction could be enforced.

Indian consumers & cyber space:

The birth of the Internet and the emergence of electronic commerce have opened new
horizons of growth and prosperity. Consumer is the integral part and plays most important
roles in the success of e-commerce.
The question is how will online consumers and their rights be protected in the Indian context?
Cyberlaw is still developing. There is no comprehensive global agreement to address these
online consumer issues.

E-Courts of India
On 23rd July 2000, the minister for Information Technology Mr Pramod Mahajan stated that
the central government is considering the setting up of at least one E-Court to deal with
Cybercrimes.
Cybercrimes require great amount of ingenuity (The quality of being clever, original and
inventive) and NET savvy (Means having the next level or next several levels of internet/web

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skills, which includes down loading files and updating applications as well as being
extremely aware of potential viruses) approach and also indicate a great deal of maturity and
understanding of the Cyber criminals.
Cybercrimes such as tampering (cause damage/make unauthorised alterations) with computer
source documents, hacking of computer system, etc., mentioned in the IT Act, 2000 are
highly specialized crimes which requires sensitive, cyber legal and technological approach of
the Court.
• The establishment of an E-court in India will be of tremendous advantage.
• It will lend credibility, uniformity and coherency of approach
• Lead to development of an indigenous Cyberlaw on cybercrime
• Section 46 of the IT Act 2000 states that an Adjudicating Officer (make a formal
judgement on a disputed matter/act as a judge in a competition) shall adjudge whether
any person has committed a contravention of any of the provisions of this act or of
any rule, regulation, direction or order made thereunder
• Section 46(2) gives the power to the adjudicating officer to impose on such persons,
guilty of having committed any contravention, such penalty or award such
compensation as he thinks fit in accordance with the provisions of the IT Act 2000
• Section 28 of the IT Act 2000 states that the Controller or any officer authorized by
him in this behalf shall take up for investigation any contravention of the provisions
of this act
• The concept of E-Courts promises to propel the growth and progress of Cyber law in
India

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