CHAPTER – I

INTRODUCTION

The 21st Century is known as a century of science and technology. Science and
technology in this century are undergoing rapid advancements. Changing technology
has both a direct and an indirect impact on law and jurisprudence. The law should
change with the changing pace of science and technology; otherwise, it will become
obsolete.

Infringement of intellectual property rights in cyber era is a global phenomenon.

Development of science and technology and the increasing need to gain access to
information have broadened the horizons of cyberspace. A person sitting or working
in any remote corner of the world can violate Intellectual Property Rights or other
rights of any other individual residing anywhere in the world. The cyberspace has
bestowed many gifts upon humanity; but at the same time it has become a place to do
all sorts of activities which are prohibited by law.1 The Cyberspace is a borderless
space and has led to many legal and jurisprudential problems and challenges for the
enactment, enforcement and interpretation of laws. To meet changing demands of
cyberspace, various sovereign countries have enacted a number of domestic
legislations. On international level too, there are various Conventions enacted in the
arena of cyberspace and intellectual property rights.2 At the same time, some
international organizations3 are working in order to meet challenges posed by cyber
crimes and IPR violations. Domestic courts of states have been dealing with the
problems posed by cyberspace, but have come up with inconsistent answers.4 The
present research is intended to critically analyze the existing legal framework of EU,
US and India with respect to problems raised by cyberspace and copyright
infringements in cyberspace.

1
Mayuri Patel & Subhasis Saha, Trademark Issues in Digital Era, JOURNAL OF INTELLECTUAL
PROPERTY RIGHTS 118 (2012).
2
Such as, Conventions on the Cyber Crime, Convention Establishing the World Intellectual Property
Organization, 1967 and other WIPO-administered Treaties; TRIPS, ICANN, Model Law on Electronic
Commerce, 1996 etc.
3
Such as, WTO, Council on TRIPS, WIPO, ICANN etc.
4
See, JUSTICE YATINDRA SINGH, CYBER LAWS, 4 (3rd ed., 2007). Some of the basic
controversial cases are discussed in this book.

1
1.1 PROBLEM STATEMENT
There are a number of national and international laws existing at the present for
protection of Intellectual Property Rights in cyber space. With the world-wide reach
of the internet, the millions of websites operating on the World-Wide Web, the ease of
access to and copying of others’ intellectual property and the famed anonymity of this
new medium, perhaps the most difficult task for intellectual property owners is
detecting infringement and identifying the infringer.5

The cyber crimes in various forms and Intellectual Property violations in particular on
and through the internet are continuously on the rise. In 1999, business PC application
software accounted for worldwide revenues of $21.6 billion – a 19% increase over the
last year.6 A research undertaken by hankooki.com in 2003 has shown that cyber
crimes increased 500-fold in 5 years.7 The Federal Computer Crime Unit registered a
45% increase in the Internet based crime compared to 2004.8 In 2003 the loss was $
30 billion and it increased to $ 32.6 billion in 2004.9 Legal Week Survey published in
May, 2013 shows that as many as 80% believe that their firm is likely to be hit by
web hackers.10 An increasing rate of cyber crime and Intellectual Property is shocking
though all cases are not registered. All cases are not registered because the owners of
Intellectual Property are either not aware of the infringements or they do not bother
about their rights.

The de-territorial nature and modus operandi of cyberspace have posed various legal
and jurisprudential problems such as problem of jurisdiction, challenges for territory-
based criminal justice system while dealing with extra-territorial copyright
infringement in cyberspace, problems with regard to linking and copyright
infringement in cyberspace. The cyberspace also has an impact on the traditional
principles of international law and these impacts are applicable to copyright
infringement too. These problems are analyzed in the later part of the research.

5
Krishan Gopal & Sarbjit Sharma, Intellectual Property in Cyberspace, in PROPRIETARY
KNOWLEDGE: POLITICS OF THE INTELLECTUAL PROPERTY, 384 (Sarbjit Sharma ed., 2006).
6
See, https://www.siia.net/estore/GPR-00.pdf (last updated March, 25, 2014).
7
See, http://www.crime-research.org/news/2003/06/Mess0904.html (last updated April, 19, 2009).
8
See, http://www.crime-research.org/news/08.07.2006/2109/ (last updated April, 19, 2009).
9
C.f. PAUL BOCIJ, THE DARK SIDE OF THE INTERNET 144 (1st ed., 2003).
10
Cf. https://www.lexisnexis.com/hottopics/lnacademic/? (last updated on Aug., 16, 2013).

2
1.2 LITERATURE REVIEW
1.2.1 Introduction
The present literature review is based on the selected and well cited books and articles
on the issues selected by the researcher. The present literature review is undertaken in
order to find out whether there are any gaps or lacunae in present literature with
respect to problems or issues posed by the researcher.

Findings of the researcher are as follows:-

1.2.2 Problem of jurisdiction in cyberspace vis-a-vis copyright infringement
and its impact on international and domestic laws:
The existing literature on jurisdiction has analyzed the fundamental principles laid
11
down by the US courts and Constitutional limits to ‘reach of long arm statute.’
There is adequate literature on the types of jurisdiction in common law and legal
provisions on jurisdiction in UK and US.12 The literature on jurisdiction has also
focused on jurisdictional rules, choice of law and EU laws related to the jurisdiction.
13
There is literature commenting on the problem of jurisdiction and problem of
copyright, trademark and patent violation in cyberspace.14 There is sufficient literature
deliberating upon the International laws and US, EU and Indian judicial
pronouncements.15 The recent literature mostly dwells around the international law
and jurisdiction in cyberspace.16 It has also considered various types of jurisdiction
and application of its principles in various jurisdictions.17

The existing literature on the problem of jurisdiction in cyberspace vis-a-vis copyright

infringements and its impact on international and domestic laws lack a detailed
discussion on the issue of jurisdiction in cyberspace and its impact on various
principles of International law. There is inadequate literature on application of
11
PETER B. MAGGES, JOHN T. SOMA, INTERNET AND COMPUTER LAW: CASES,
COMMENTS AND QUESTIONS 472-489 (1st ed., 2001).
12
MUCGAEK CHISSICK, ELECTRONIC COMMERCE LAW AND PRACTICE 115-138 (3rd ed.,
2002).
13
RODNEY RYDER, GUIDE TO CYBER LAWS 509-512 (3rd ed., 2007).
14
See, S.K. Verma & Raman Mittal and others, LEGAL DIMENSIONS OF CYBERSPACE 113-197;
266-305 (S.K. Verma & Raman Mittal ed., 2004).
15
Raman Mittal, Dispute Resolution in Cyberspace: Determining Jurisdiction and Applicable Law, in
LEGAL DIMENSIONS OF CYBERSPACE 267-305 (S.K. Verma & Raman Mittal ed., 2004).
16
VAKUL SHARMA, INFORMATION TECHNOLOGY: LAW AND PRACTICE 354-393 (3rd ed.,
2011).
17
VAKUL SHARMA, INFORMATION TECHNOLOGY: LAW AND PRACTICE 354-393 (3rd ed.,
2011).

3
international law and legal principles to problems posed by cyberspace. The present
literature is also silent about aptness of International, EU, US and Indian Laws while
dealing with copyright infringement in cyberspace. There is negligible literature on
narrow and self-centric judgments delivered by various national courts and solutions
to the same. Further, there is inadequate literature on the applicability and non-
applicability of International, EU, US and Indian laws to cyberspace in instances of
copyright infringement.

1.2.3 Hyperlinking vis-à-vis copyright infringement in cyberspace

The existing literature has deliberated upon Intellectual Property Rights in
cyberspace. It contains information on copyrights, trademarks, confidential
information and patent rights violations in the cyber space.18 The maximum existing
literature focuses on Copyright Law and Internet.19 There is adequate literature
deliberating on U.K. and European Legislative initiatives regulating Electronic
Commerce, laws relating to copyright violations in cyberspace and cases decided by
UK and US courts.20 There is a plethora of literature on basic concepts of copyrights
and its infringement including P2P sharing.21 The researcher found literature
commenting on the application of the US, EU and Indian Laws22 to cyberspace. There
is literature on judicial pronouncements in the US, EU and India. The researcher
found adequate recent work explaining the basic concepts of liking, framing and P2P
sharing23 and its application in India. However there is inadequacy of literature
analyzing problem of linking and copyright infringement from its various angles. The
literature also lacks thorough analysis as to reasons why linking party and end- user
be made liable.

18
MUCGAEK CHISSICK, ELECTRONIC COMMERCE LAW AND PRACTICE 139-165 (3rd ed.,
2002).
19
Raman Mittal, Copyright Law and the Internet, in LEGAL DIMENSIONS OF CYBERSPACE 113-
151 (S.K. Verma & Raman Mittal etd., 2004).
20
Ibid, Chapter no. 12, page no. 307-323.
21
page nos. P.147-189.
22
See, S.K. Verma & Raman Mittal and others, LEGAL DIMENSIONS OF CYBERSPACE 117-134
(S.K. Verma & Raman Mittal ed., 2004).
23
See, VAKUL SHARMA, INFORMATION TECHNOLOGY: LAW AND PRACTICE 465-479
(3rd ed., 2011).

4
1.2.4 Challenges for criminal justice system in dealing with cross border
copyright infringement in cyberspace
The existing literature in this arena dealt with various frauds, problem of policing and
initiatives taken by EU.24 It has also analyzed the domestic problem of policing in
cross border offences.25 A recent work on Cyber Laws26 has considered the basic
provisions relating to an investigation under Information Technology Act, 2000, and
amendments to other laws and case laws.27 Further, various authors have analyzed the
basic principles followed in adversarial criminal justice system28 and inquisitorial
criminal justice system.29 The researcher found considerable literature analyzing
Advantages and Disadvantages of Adversarial System in Criminal Proceeding.30 The
existing researchers have also focused on the need to adopt some good principles of
inquisitorial criminal justice system in order to improve adversarial criminal justice
system.31

However, the present studies lack in analysis of problems faced by adversarial

criminal justice system in dealing with cross border copyright infringements in
cyberspace. The researcher found shortage of literature on challenges faced by an
Adversarial Criminal Justice System in dealing with cross border copyrights
infringement in cyberspace.

24
See, DIANE ROWLAND AND MACDONALD, INFORMATION TECHNOLOGY LAW 331-371
(1st ed., 1997).
25
DIANE ROWLAND AND MACDONALD, INFORMATION TECHNOLOGY LAW (1st ed.,
1997).
26
JUSTICE YATINDRA SINGH, CYBER LAWS (4th ed., 2010).
27
Ibid, chapter- 8; page no. 37-44.
28
Bruno Deffains and Dominique Demougin, The Inquisitorial and the Adversarial Procedure in a
Criminal Court Setting,
http://www.ebs.edu/fileadmin/redakteur/funkt.dept.economics/Publikationen/DD-30-demougin-
deffains_inquisitorial_and_adversarial_procedure_2007.pdf (last updated Jan., 16, 2014). See also,
RONALD A. BANASZAK, FAIR TRIAL RIGHTS OF THE ACCUSED: A DOCUMENTARY
HISTORY 77 (1st ed., 2002).
29
ROELOF, HAVEMAN, OLGA KAVRAN, JULIAN NICHOLLS, SUPRANATIONAL CRIMINAL
LAW: A SYSTEM SUI GENERIS 158 (1st ed., 2003).
30
William van Caenegem, Advantages and Dis-advantages of Adversarial System in Criminal
Proceedings, BOND UNIVERSITY.,
http://epublications.bond.edu.au/cgi/viewcontent.cgi?article=1223&context=law_pubs (last updated
Jan., 16, 2014).
31
Committee on Reforms of Criminal Justice System Government of India, Ministry of Home Affairs
Vol No. 1 (March 2003). P. 33.

5
1.2.5 Summary of Literature Review
The analysis of the literature on the problem of jurisdiction shows that there is only
basic literature available on the issue of jurisdiction in cyber space. The literature is
lacking in analysis of the issue of jurisdiction from its jurisprudential angle. There is a
dearth of literature considering the problems posed by new technological
advancements such as BitTorrent etc. Further, the literature on the cyber jurisdiction
is lacking in analysis of the impact of self-centric and narrow judgments delivered by
various domestic courts. The researcher found paucity of literature analyzing aptness
of national and international laws in the era of cyberspace and the virtual world.
Therefore, there is a need to analyse the problem of jurisdiction from its various
angles by considering recent technological advancements.

The literature review on the problem relating to linking and copyright infringement in
cyberspace shows that there is adequate literature on the concept of linking and types
of linking, etc. However, it is lacking comprehensive discussion based on the issues
from its various angles. It also lacks detailed discussion as to the logic behind
applicability and non-applicability of the present laws to the problem of linking and
copyright infringement in cyberspace. The authors have not analyzed the legal
principles in detail, while commenting upon the liability required to be imposed on
various persons involved in the linking in cyberspace. Therefore, there is a pressing
need to analyze in-depth the issue of linking and copyright infringement in
cyberspace.

The literature review of the challenges for adversarial criminal justice system in
dealing with cross border copyright infringements shows that there is adequate
literature on the basic concepts and principles followed in adversarial and inquisitorial
systems. There is negligible literature on challenges faced by an Adversarial Criminal
Justice System in dealing with cross border copyrights violation in cyberspace.
Therefore, there is a need to revisit the problems highlighted by the researcher in the
present research.

6
1.3 RESEARCH OBJECTIVES
Following are the main objectives of the research:

To highlight and comment upon the nature of cyberspace and application of the
established principles of international law on jurisdiction to copyright infringement on
cyberspace

To critically analyze the problem of jurisdiction in cyber space with the help of
principles of International law and relevant judgments and laws from EU, US and
Indian jurisdiction

To evaluate impact of cyberspace on the established principles of international law on

jurisdiction.

To analyze and comment upon challenges for adversarial criminal justice system in
dealing and co-operating with extra-territorial copyright infringements from
inquisitorial criminal justice system or EU jurisdiction.

To analyze and comment upon linking and copyrights infringements in cyber space

To evaluate a need to establish a supra-national organization in dealing with

cyberspace and copyright infringements

To recommend appropriate amendments in International and respective national laws

to resolve the above mentioned problems

1.4 RESEARCH QUESTIONS

1. Are established principles and doctrines of international law on jurisdiction
applicable to the cyberspace?

2. Do conflicting laws and self-centric judgments on the issue of jurisdiction create

chaos in dealing with problems posed by cyberspace?

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3. Whether de-territorial nature of cyberspace has any impact upon the established
principles of international law? Or Is there any need to establish and apply new
or modified principles and doctrines of international law to cyberspace?

4. Whether the cyberspace has posed legal and jurisprudential challenges before
the Adversarial Criminal Justice Systems in dealing and co-operating with
cross-border copyrights infringements from Inquisitorial Criminal Justice
Systems?

5. Do laws in India and US provide adequate protection to copyrights with regard

to hyperlinking in cyberspace?

6. Is there a need to establish a supra-national organization in dealing with

cyberspace and copyright infringements?

1.5 SIGNIFICANCE / UTILITY OF THE RESEARCH

In every research, one of the key questions that arises is: why this topic? Or what is
the importance or the significance of the research? The cyberspace is a new and ever-
evolving area. The nature and working of the cyberspace has posed multiple problems
confronting the international and domestic laws. The problems and self-centric
solutions to the said problems have been creating chaos in cyberspace. It also has an
impact on established principles and understanding of domestic and international law.
Therefore, there is an urgent need to analyze and resolve the problems posed by
cyberspace. Furthermore, an Intellectual Property protection works as a backbone of
the country’s economy. It is one of the most important factors for boosting a country’s
economy. Thus, it is not wise to neglect problems posed by cyberspace in general and
copyrights infringements in cyberspace, in particular.

The research would be useful because of the following reasons:

The findings of the research may be useful to legislators in order to fill up gaps in
their respective legislations. The research may be utilized by Judiciary, while dealing
with various legal and jurisprudential problems posed by cyberspace and copyright
infringements in cyberspace. It may be used by international organizations in order to

8
resolve problems faced at international level with regard to the subject of study.
Further, the findings of this research or problems posed in this research may be used
by other researchers for further study. Furthermore, the present research may be
utilized by various academicians, lawyers and students of law in order to understand
the complexity of the subject and problems posed in this research.

1.6 METHODOLOGY AND METHODS USED

The researcher has relied upon the Doctrinal Research Methodology, which is also
known as library based research. This research methodology is utilized to criticize or
analyze laws, rules, regulations, judicial pronouncements, legal doctrines and
principles with the help of criticism and analysis by various other jurists, authors or
writers. The analysis and criticism with the help of available material were helpful to
reach scientific conclusion.

1.6.1 Approaches/Process used

In the context of the problems posed and objectives to be achieved, the following
research approaches are applied:

1.6.1.1 Collative Process and Impact Analysis

A collative process is utilized in order to find out the effects of existing national or
international laws in relation to laws existing in other countries or impact on national
law or international law. This research was intended to evaluate the effects of
cyberspace on the International Law and Domestic Laws on one hand and effect of
conflicting judgments and principles laid down by domestic courts on the other hand.
The impact analysis is carried out to find out the impact of an established or newly
formed legal principles, rules or institutions. On the basis of its outcome, the
necessary changes may be made, wherever necessary. In the present study, the above
approach is used to analyze: a) impact of cyberspace on International and national
laws; b) impact of judicial pronouncements made by one domestic jurisdiction upon
other foreign jurisdictions; c) impact of nature of cyberspace, laws and case laws
upon copyright protections.

9
1.6.1.2 Interpretative Research Process
This process aims at interpreting various words, phrases, doctrines, etc. This kind of
research is confined mostly to the study of statutes, texts and judicial pronouncements
and analysis of words and terms, etc. In the present context, an attempt is being made
to interpret judicial pronouncements, doctrines, words and phrases.

1.6.1.3 Comparative Approach

This approach is utilized to compare Indian laws and case laws vis-à-vis US and EU
laws and case laws.

1.6.2 Method used

In collecting, analyzing and interpreting the data, researcher has relied upon the
qualitative method of data analysis. The researcher has further relied upon the
inductive method of data analysis while analyzing and interpreting the data in the
present research.

1.7 SOURCES OF DATA

The Library, Internet (Including Legal Databases, like LexisNexis, West Law, SCC
Online, Manupatra etc.), News Papers and Periodicals are utilized as sources of data
collection.

1.8 SCOPE AND LIMITATIONS OF THE RESEARCH

The scope of the research is restricted to the problem of jurisdiction, problems before
the adversarial criminal justice system, problem with regard to linking and copyright
infringement in the US and India. The problem of jurisdiction is limited to laws, case
laws and principles applicable to criminal laws in the above countries. The problems
before an adversarial criminal justice system are restricted to a few problems faced by
it while dealing and co-operating with countries following inquisitorial criminal
justice system. The problem posed by the linking is limited to copyrights
infringements only; and the researcher has not considered linking and trademark
infringement or violation of the law of tort.

10
The fundamental limitations to the research resulting from lack of time, money and
resources are as below: a) the researcher could not study all the literature with respect
to the subject matter of the research; b) the researcher could not study each and every
case law with regard to the scope of the research. Therefore, the researcher has
selected fundamental cases for analysis; c) the researcher could not study each and
every problem posed by cyberspace. The study, therefore, is limited to the selected
problems posed in the research.

1.9 RULES OF CITATION

The researcher has followed Blue book (19th ed.) Rules of Citation in the present
research. (See Annexure I)

1.10 ISSUES ADDRESSED AND SCHEME OF

CHAPTERISATION
The revolution in the arena of the cyberspace has led to many jurisprudential and legal
problems. The researcher has divided research into five main chapters and sub-
chapters. Broad scheme of chapterisation is as follows:

Chapter – I : INTRODUCTION
Chapter – II : PROBLEM OF JURISDICTION IN CYBERSPACE AND ITS
IMPACT ON INTERNATIONAL AND DOMESTIC LAWS
Chapter – III : CHALLENGES FOR CRIMINAL JUSTICE SYSTEM IN
DEALING WITH CROSS BORDER COPYRIGHT
INFRINGEMENT IN CYBERSPACE
Chapter – IV : HYPERLINKING VIS-À-VIS COPYRIGHT INFRINGEMENT
IN CYBERSPACE
Chapter – V : CONCLUSION AND RECOMMENDATIONS

11