CYBER CRIME INVESTIGATION WITH SPECIAL REFERANCE TO INTELLECTUAL PROPERTY RIGHTS Introduction:The invention of computer and its union

with the information technology has been one of the miraculous achievements in the history of mankind. It enabled people to meet virtually and to communicate and transact with each other electronically in the cyberspace. Cyberspace is a world of virtual reality, where the entry is not bound by geographical boundaries. Though it cannot be seen and felt, communication and transaction takes place in this virtual world. This has enabled people to interact with other, exchange information, data and ideas, entertain people, communicate through email, enter into contract etc. people from different walk of life are using computer and internet to create transmit and store information in electronic from instead of traditional paper document and they are gaining in manifolds in terms of time, cost efficiency and effectiveness. It is cheaper, easier to store & retrieve and speedier to communicate. As
technology creates new opportunities it also poses new challenges. Internet, which is open for exploration, unfortunately, has the potential to exploitation. Internet has facilitated the commission of traditional crime such as defamation, slander criminal breach of trust, obscenity etc. The confidentiality, which is important in commercial and financial transaction, can easily be breached on internet. Intellectual property rights in the digital world, especially in the field of copyright, trademarks, computer software can easily be infringed without sufficient redresses available to the aggrieved party.

CYBER CRIME MEANING:Cyber crime is growing rapidly and so the definition for cyber crime is still evolving. At the Tenth United Nations Congress on the Prevention of Crime and Treatment of Offenders, in a workshop devoted to the issues of crimes related to computer networks, cybercrime was broken into two categories and defined thus:

a. Cybercrime in a narrow sense (computer crime): Any illegal behavior directed by means of electronic operations that targets the security of computer systems and the data processed by them. b. Cybercrime in a broader sense (computer-related crime): Any illegal behavior committed by means of, or in relation to, a computer system or network, including such crimes as illegal possession [and] offering or distributing information by means of a computer system or network. Of course, these definitions are complicated by the fact that an act may be illegal in one nation but not in another. There are more concrete examples, including, unauthorized access, damage to computer data or programs, computer sabotage, unauthorized interception of communications, computer espionage. These definitions, although not completely definitive, do give us a good starting pointone that has some international recognition and agreementfor determining just what we mean by the term cybercrime. The term 'cyber crime' has not been defined in any Statute or Act. The Oxford Reference Online defines 'cyber crime' as crime committed over the Internet. The Encyclopedia Britannica defines 'cyber crime' as any crime that is committed by means of special knowledge or expert use of computer technology. CBI Manual defines cyber crime as:(i) Crimes committed by using computers as a means, including conventional crimes.(ii)Crimes in which computers are targets. A generalized definition of cyber crime may be "unlawful acts wherein the computer is either a tool or target or both. Nandan Kamat says that since the internet is composed of computers, crimes occurring on the internet are computer crimes. He also says that a computer can be the subject of the crime by being stolen or damaged; it can be the site of crime such as fraud or copyright infringement, or it can be the instrument of a crime such as when it is used to access other machine or store information illegally1. Pawan Dugal says any criminal activity that uses a computer either as an instrumentality, target or a means for perpetuating further crimes comes within the ambit of cyber crime2. Marc M Goodman says that a computer crime can be classified into three main categories (i) as crimes

Nandan Kamat, Law Relating to Computers Internet and E-commerce, Universal Publishing Company Pvt. Ltd, New Delhi (2000) p22 2 Pawan Duggal, Cyber law Indian Perspectives, Saakhar Publications, New Delhi.

where the computer is the target,(i) crimes where computer is the tool of the crime and (iii) crimes where the computer is incidental.3 Elements of cyber crime:As in traditional crimes, for a cybercrime to exist four elements must be present: actus reus (the prohibited act or failing to act when one is supposed to be under duty to do so); mens rea (a culpable mental state); attendant circumstances (the existence of certain necessary conditions); and harm resulting to persons or property. Here is an example using the four elements for a property cybercrime involving criminal trespass (defined as entering unlawfully into an area to commit an offense) and theft of informationthe intended offense to be done upon entry. A cyber perpetrator enters the computer and unlawfully takes, or exercises unlawful control over, the propertythe information of another (actus reus). The cyber perpetrator enters with the intent to commit an offense and acts with the intent of depriving the lawful owner of data (mens rea). By societys standards, the cyber perpetrator has no legal right to enter the computer system or to gain control over the software (attendant circumstances). The cybercriminal is, therefore, liable for his or her acts. The cyber perpetrator unlawfully entered the computer (that is, criminal trespass) to commit an offense (that is, theft) once inside, and as a result, the target is not able to access his or her data (that is, harm is done to the target). The sine qua non for cyber crime is that there should be an involvement, at any stage, of the virtual cyber medium.
CLASSIFICATION:

The subject of cyber crime may be broadly classified under the following three groups. They are1. Against Individuals It may be against individual person or their property. The following are the crimes, which can be committed against individual person.

Marc M Goodman, why police dont care about computer crimes? 10 harvard journal of law and technology 468(1997)

i. Harassment via e-mails. ii. Cyber-stalking. iii. Dissemination of obscene material. iv. Defamation. v. Unauthorized control/access over computer system. vi. Indecent exposure vii. Email spoofing viii. Cheating & Fraud
2. Against Organization a. Government c. Firm, Company, Group of Individuals. 3. Against Society at large The following are the crimes, which can be committed against the followings group Against Individuals: i. Harassment via e-mails. ii. Cyber-stalking. iii. Dissemination of obscene material. iv. Defamation. v. Unauthorized control/access over computer system. vi. Indecent exposure

vii. Email spoofing viii. Cheating & Fraud

Against Individual Property: i. Computer vandalism. ii. Transmitting virus. iii. Netrespass iv. Unauthorized control/access over computer system.

v. Intellectual Property crimes vi. Internet time thefts

Against Organization: -i. Unauthorized control/access over computer system

Against Society at large: i. Pornography (basically child pornography). ii. Polluting the youth through indecent exposure. iii. Trafficking

iv. Financial crimes v.Sale of illegal articles vi.Online gambling vii. Forgery Infringement of intellectual property rights in digital media:Intellectual property consists of a bundle of rights. Any unlawful act by which the owner is deprived completely or partially of his rights is an offence. The common form of IPR violation may be said to be software piracy, copyright infringement, trademark and service mark violation, theft of computer source code, etc. Sophisticated methods of commission of different crimes adopted by the criminals in any branch of Criminal Law haven't left the field of IPRs untouched. Cracking of websites, hacking of internet, demolishing of security, and use of common trade names as domain names without permission from the owners of the same is done regularly and unscrupulously by highly trained professionals in order to make wrongful economic gains at the expense of IPR's of the others. Copyright infringement:With the mergence of the internet and increasing use of the worldwide web possibilities of infringement of copyright have become mind boggling free and easy access on the web together with possibilities of down loading has created new issued in copyright infringement. Taking content from one site, modifying it or just reproducing it on another site has been made possible by digital technology and this has posed new challenges for the traditional interpretation of individual rights and protection. Any person with a PC (Personal Computers) and a modem can become a publisher. Downloading, uploading saving transforming or crating a derivative work is just a mouse click away. The copyright law in India is largely TRIPS compliant. Major changes were made to the Indian Copyright Act in June 1994, coming into effect in May 1995. The amendments to the Act were a landmark in the copyright industry. The definition of copyright infringement under Section 51 of the

Copyright Act defines infringement broadly as the doing of any act regarding the copyrighted material which is not authorised by the owner. Infringement includes making copies of the copyrighted material subject to the exceptions provided for under Section 52 of the Act, as well as trading and distributing the copyrighted material. Further, Section 63 of the Copyright Act seeks to penalise any person who knowingly infringes or abets infringement of any copyrighted material, and provides for a penalty that may extend upto three years imprisonment and a fine of upto rupees two lakhs. Section. 63A: Enhanced penalty on 2nd and subsequent convictions.

Section. 63B: Any person who knowingly makes use on a computer of an infringing copy of a computer program, shall be punished with imprisonment for a term which shall not be less than 7 days but which may be extend to 3 yrs. and with fine which shall not be less than Rupees 64 : 50,000/-, Power but of which police may to extends seize to Rupees 2 lacs. copies. Section. infringing

Section. 65 : Any person who knowingly makes, or has in his possession, any plate for the purpose of making infringing copies of any work in which Copyright subsists is punishable with imprisonment which may extends to 2 yrs. and with fine.
The much required protection was given to computer software, clarifying the rights of the user to make backup copies and imposing heavy punishment and fines on infringers of software copyright. landmark decision, delivered in Microsoft vs Yogesh Papat4, the Delhi High Court calculated the actual loss of business caused to the plaintiff by the defendant selling pirated software as 'freeware' with assembled computers, and awarded damages of Rs.1.97 million. TRADE MARK INFRINGEMENT:-

Trademark violation is amongst the crucial issues of Intellectual Property Infringements in Cyberspace. The Trade Marks Act, 1999 provides for a comprehensive scheme whereby those persons who un-authorized deal with the trade marks can be punished for various offences. The offences includes -Falsifying and falsely applying trade marks. Selling goods or providing services to which false trademark or false trade description is
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[2005 (30) PTC 245]

applied. Removing piece goods etc. Contrary to Sec81 which deals with stamping of piece goods, cotton yarn and threads. Falsely representing a trade mark as registered. Falsification of entries in the register; and Abetment in India, of acts done outside India etc. The punishment of these offences includes a minimum imprisonment of 6 months and minimum of Rs.50, 000 which may extent to a maximum of 3 years and Rs.20, 000 respectively. Section 105 of the Act provides for enhance penalty on second or subsequent conviction. It been held in the Yahoo Case5,that the domain name serves the same function as Trademarks and is not a mere address but is entitled to equal protection as trade mark. Section 28 of the Trade Mark Act 1999; confers upon the proprietors exclusive right to use their trade marks, and also grants him the right to file suit for the infringement of his right, and obtain injunction, damages and accounts of profits. Cyber Investigation Cyber Crime Investigation is the collecting, anylyzing and investigation of digitial eveidence and cyber trails. This digital evidence and cyber trail may be found in computer hard disks, cell phones, CDs, DVDs, floppies, USB data storage devices, SIM cards, iPods, digital cameras, laptop computers, computer networks, the Internet etc. Digital evidence and cyber trails can be hidden in pictures and sound files (steganography), encrypted files, password protected files, deleted files, formatted hard disks, deleted emails, deleted SMS, chat transcripts and even in the RAM. Cyber Forensics Most of the computer users believe that their actions committed over the Internet will be hidden from others. But the trace evidence of computer usage is abundant. Individual computers contain the details of electronic communications even after the data has been deleted. Forensic examination can easily retrieve the record of past usage from these details. In addition, Internet service providers and network administrations can also document, store, and maintain the record of computer usage, and such records can be used in a criminal investigation.
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Yahoo.com V. Akash Arora 1999 PTC (19) 201

Cyber forensics is the discovery, analysis and reconstruction of evidences by a process of extracting information and data from a computer storage media. This data is collected, preserved and is used for presenting it in a manner acceptable in a court of law. Cyber Forensics also includes finding encrypted and decrypted password protected information, tracing the source of e-mail, recovering deleted data, computers that created them etc. The main objectives of cyber forensics include rapid discovery of evidence, estimate of potential impact of the malicious activity on the victim, and assessment of the objective of the crime and identity. Intrusion analysis includes examination of many sources of data evidence e.g., firewall logs, network management information etc. Cyber forensics adds inspection of transient elements such as contents of the following: memory, registers, basic input/output system, and input/output buffers, serial receive buffers. The evaluation of data related to both pre and post cyber attack periods are done. The Cyber Forensics works by collecting the digital evidence at the time of cyber crime investigation and stores them for the purpose of examination. Original digital evidence and duplicate digital evidence is created. Original includes physical items and associated electronic data at the time of seizure. Duplicate digital data evidence is accurate digital form lf all electronic records contained on the original physical item. Original computer is not altered by and of the examination process and should be held with great caution. Retaining the original evidence in its initial form, the investigator marks the mirror image copy of all data on the computer storage and the examines the data stores on any storage media associated with a computer. This ensures that the tampering of the digital evidence does not occur. This mirror image is known as a it-stream image. As the mirror image is made, it also creates mirror image of the slack created in various files and unallocated storage space. This will help the investigator to reveal the data or information stores there.

Conclusion:Protection of Intellectual property is crucial for the success of e-commerce. The traditional laws for protecting intellectual property have been applied also in cyberspace. However, due to inherent nature of the internet, several pertinent issues have emerged such as the principles to determine jurisdiction, recognizing the hybrid varieties of online infringements, resolving conflict of laws issues which apply equally in cyberspace. Scholars have advocated a combined approach of sociological, technological and legal initiatives and measures to protect the infringement of Intellectual property in cyberspace. The legal enforcement of infringement of Intellectual property rights in cyberspace is a very challenging area. Nevertheless, it is a challenge of the digital era, which we need to take in the interest of and furtherance of the emerging e-information society.