UNIT – III

Introduction and Overview of

Cyber Intellectual Property
• Introduction and overview of Cyber Intellectual Property;
• Intellectual property and cyberspace
• Emergence of Cyber Crime
• Grant in software patent and Copyright in software;
• Software piracy
• Trade marks issues related to the Internet (Domain name)
• Data protection in cyberspace
• E- commerce and E-contract
• Salient features of the Information Technology Act;
• IPR provisions in the IT Act;
• Internet policy of the Government of India
 Introduction and overview of Cyber Intellectual Property
• Intellectual property means knowledge or information in any form with a commercial
value. IPR can be defined as a mix of ideas, inventions, and creations i.e. Copyright,
Patent, Trademark, and Design are some of the types of Intellectual Properties. These are
creations of the human mind and are hence called Intellectual Property.
• The IT Act, of 2000 has addressed the misuse of technology in the form of Cybercrimes. It
has however failed to discuss Intellectual Property issues and their protection.
• Likewise, the Indian Trademark Act, 1999 and Copyright Act, 1957 are also silent on
online Trademark and Copyright infringement issues.
• Though computer programs are protected under the Copyright Act but it does not provide
remedies for online software piracy.
• The advancement in e-commerce and e-business has led to an important concern to companies
and organisations to protect their IPR online. Nowadays, cyber crimes do not only confine
themselves to fraud, cyberbullying, and identity thefts but also an infringement of copyrights
and trademarks of various businesses and other organisations.
• Cyberspace - a virtual space where people and organizations can interact and share
information globally, regardless of their physical location.
• Cyberspace - Computer-generated worldwide stage of internet and web is known as
Cyberspace. Cyberspace is a global computer network that facilitates online communication.
• It allows users to share information and ideas, interact and communicate, play games, engage
in discussions, conduct business, and many other activities.
• With the growth of technology, every individual has a right to access cyberspace and share
information.
• In cyberspace, sometimes private information is shared by a person who is not the owner.
Hence, privacy is violated, one could make a profit from another person's creation.
• Cybercrime can be defined - as any criminal activity directly related to the use of
computers and the internet, such as illegal trespass into the computer system or database of
another, manipulation or theft of stored or online data, hacking, phishing, cyber warfare,
spreading computer viruses, etc. In simple words, any offence or crime in which a computer
is used for committing that crime.
• The Indian Law does not define the term ‘cybercrime’. It is neither defined in
the Information Technology Act, 2000 nor in the I.T. Amendment Act, 2008 nor in any
other legislation of India.
• The Indian criminal law still does not use the term ‘cybercrime’ even after its amendment by
the Information Technology (Amendment) Act, 2008.
 Software Protection under the Indian Patent Law

•Software or computer programs are not patentable subject matter.

•Sec. 3(k) of the Patents Act of 1970, specifies that "a mathematical or business process, a
computer program per se, or algorithms" are not innovations and thus not patentable.
•For patentability, the software must be more than an algorithm and must be a technological
invention
•The interplay of software and hardware needs to be examined in order to bring a
computer-related invention or software outside the scope of the word "per se" in section 3(k).
•. If the software is related to an invention and constitutes a component of that invention, it can be
patentable.
•If the invention passes the triple test of Novelty, Inventive step, and Industrial applicability, the
devices may be regarded patentable in circumstances where the devices are in combination with
innovative computer programs to make their functioning final.
•To avoid the claim of Sec. 3 (k), it is necessary to demonstrate that hardware, in addition to
software or a computer program, is an integral aspect of the invention.
 Software Protection under Copyright Law
• Under the TRIPS (Trade Related Aspects of Intellectual Property Rights) agreement, computer
programs qualify for copyright protection just as any other literary work and other forms of
IPR protection.
• Copyright is a legal term describing rights given to creators for their literary and artistic and
musical works.
• Copyright does not protect the idea or the facts alone, but it protects the way or in the manner
it is expressed and put across in a tangible form. The final tangible medium of expression that
can be reproduced is granted copyright protection.
• Computer software is a "computer program" within the meaning of the Copyright Act.
• According to sec. 2(ffc) of the Copyright Act, a computer program means a “set of
instructions expressed in words, codes, schemes or in any other form, including a
machine-readable medium, capable of causing a computer to perform a particular task
or achieve particular results”.
• The Copyright Act of 1957, under Sec. 2(O), includes computer programs, tables and
compilations, including computer databases, as ‘literary work’.
• For granting copyright protection, computer software must be original.
• The software copyright owner has the right to reproduce and make any number of
copies of his work as he likes.
• He has vested rights to sell, rent, transfer, update, modifying his software-copyrighted
work.
• No person can use such copyrighted work for his own benefit without prior permission of
the owner.
• Nevertheless, if any person exploits the copyrighted work for any commercial purpose or to
cause any monetary loss to the owner, it will amount to copyright infringement.
• Even though the software copyright owner enjoys many exclusive rights, these rights are not
absolute and are subject to certain limitations and exceptions to protect and safeguard the
public interest.
 Trademark issues related to the Internet (Domain Name)

• “Cybersquatting” - means some person sitting on the property of another person.

It is ‘registering a well-known company or brand name, as internet domains, and selling the
domain names to the TM owners or third parties at a high profit.
• Reverse domain name Hijacking- It is also known as reverse cybersquatting. It
happens when a trademark owner tries to secure a domain name by making false
cybersquatting claims against a domain name’s rightful owner through legal action.
• The Domain Name owner has to transfer domain name ownership to the TM owners to
avoid legal action and expenses.
• Reverse domain name hijacking is commonly done by larger corporations and wealthy
individuals.
•Meta tags- Meta tag is an element of web pages that are also known as Meta elements. Meta
tags can be categorized into titles, descriptions, and keywords it provides information about
page descriptions, keywords, and other relevant data.
•People abuse Meta tags to build false page rankings for web pages that were poorly constructed.
 Software Piracy

•Software piracy is the act of stealing software that is legally protected.

•knowingly using an infringing copy of a computer program on a computer is Software piracy.
•The stealing includes copying, distributing, modifying, or selling the software.

• Software piracy is a criminal Offence in India.

Knit pro International v. State of NCT Delhi (2022) - the Supreme Court of India overturned
a Delhi HC judgment that had ruled copyright infringement to be a bailable &
non-cognizable offense and declared copyright infringement as a “non-bailable” and
“cognizable” offence under Sec. 63 of the Copyright Act.
 Types of Software Piracy

• Soft lifting- when someone purchases one software and downloads it onto multiple
computers, even though the software licence states it should be downloaded once only.
• Software Counterfeiting- Counterfeiting occurs when software programs are illegally
duplicated and sold with the appearance of authenticity.
• Online Piracy- illegal software is acquired from online sites, which is mainly achieved
through the P2P(Peer to Peer) file-sharing system. Peer-to-peer (P2P) file sharing is a
technology that allows users to share digital files, such as music, videos, and documents,
directly with other computers on a network.
• Client-Server overuse- more copies of the software are installed than it has licensed for. It
mostly happens in institutions and organisations.

• Hard-disk Loading- happens in PC resell shops. The shop owner buys a legal copy of the
software and reproduces its copies on multiple computers by installing it.
 The consequences of Software piracy

• Increased chances that the software will malfunction or fail.

• Forfeited access to support for the program such as training, upgrades, customer support,
and bug fixes.
• No warranty and the software can’t be updated.
• Increased risk of infecting PC with malware, and viruses.
• Slowed down PC.
• Legal repercussions due to copyright infringement.
 Data protection in cyberspace

1 Information Technology (Reasonable Security Practices and Procedures and Sensitive

Personal Data or Information) Rules, 2011 deals with the protection of “Sensitive personal
data or information of a person”, which includes the personal information relating to (Sec. 3):
• Passwords;
• Financial information such as bank account credit or debit card or other payment instrument
details;
• Sexual orientation;
• Medical records and history; and
• Biometric information.
2. Sec. 69 0f The Information Technology Act, 2000, Power to issue directions for interception or
monitoring or decryption of any information through any computer resource.- Is an exception to
the general rule of maintenance of privacy and secrecy of the information. It gives the Central
and State governments the power to intercept, monitor, decrypt, or issue content-blocking orders
for information stored in computer resources. The government can issue orders if it believes it's
necessary or expedient to do so in necessary for the interest of-
• the sovereignty or integrity of India,
• Defence of India,
• Security of the State,
• friendly relations with foreign States,
• public order,
• for preventing incitement to the commission of any cognizable offence relating to the above,
or
• for the investigation of any offence.
Sec. 72A of the Information Technology Act, 2000, - disclosure of information,
knowingly and intentionally, without the consent of the person concerned and in breach of
the lawful contract has been also made punishable with imprisonment for a term extending
to 3 years and a fine extending to Rs 5,00,000.
 The Information Technology Act, 2000
• The The Information Technology Act, of 2000 aims to provide legal recognition to electronic
commerce and electronic data interchange.
• The major Amendments were in 2008 and 2011. The 2011 Am. expanded the scope of
cybercrimes to include child pornography, identity theft, and breach of privacy.
• Penalties were increased for various offenses.
• The Central government appoints Controlling Officers to oversee compliance with the Act.
• Compliance with data protection, data storage, and cyber security is supervised by the Indian
Computer Emergency Response Team (CERT).
• The Act established the Cyber Regulations Appellate Tribunal to adjudicate IT-related
disputes and hear appeals against orders of authorities constituted under the Act.
 Schedule of Information Technology Act, 2000
The Information Technology Act, 2000 contains 7 Schedules that specify various provisions
of the Act in detail-
Schedule 1 - Contains the procedures for appointment of Certifying Authorities and
functions of Certifying Authorities under the Act.
Schedule 2 - Specifies the various technical and operational standards for digital signatures
to ensure security and authenticity.
Schedule 3 - Provides for functions and duties of the Controller of Certifying Authorities
appointed under the Act.
Schedule 4 - Specifies procedures for the appointment of adjudicating officers and appellate
tribunals under the Act.
Schedule 5 - Lays down offences and penalties for different cyber crimes.
Schedule 6 - Lists the amendments to other existing laws made by the Information
Technology Act.
Schedule 7 - Contains provisions related to the constitution and functions of the Cyber
Regulations Appellate Tribunal.
 Cyber Crimes under the IT Act, 2000

• Sec.65- Tampering with Computer source documents - imprisonment up to 3 years, or with a

fine up to 2 lakh, or both.

• Sec.66 -Hacking with Computer systems, Data alteration (dishonestly or fraudulently)-

imprisonment up to 3 years or fine up to 5 lakh or with both.

• Sec.67 - Punishment for publishing or transmitting obscene material in electronic form – for
first conviction- imprisonment for 3 years and fine up to 5 lakh. second or subsequent
conviction- imprisonment of 5 years and also with a fine of up to 10 lakh.

• Sec.72 -Breach of Confidentiality and Privacy -imprisonment up to 2 years, or with a fine up

to 01 lakh, or with both.

• Sec.73 -Publishing false digital signature certificates -imprisonment up to 2 years, or with a

fine up to 01 lakh, or with both.
 Salient Features of Information Technology Act, 2000
• It is the law that deals with Cybercrime and Electronic commerce.
•Jurisdiction of the Act: The Act applies to all individuals, corporations, NGOs, government
agencies, etc. that use electronic records, computers, or communication networks globally.
-The digital signature provisions apply to all Certifying Authorities operating in India, irrespective
of the location of the subscribers.
-Establishes Cyber Appellate Tribunals and adjudicating officers appllicable only within India.
Foreign entities cannot appeal to these judicial bodies under the Act.
•Provide legal recognition to electronic records and digital signatures: The Act gives legal
validity and enforceability to electronic and digital signatures at par with physical documents and
handwritten signatures. It specifies procedures for digital signatures and cybercrime investigation.
This enables e-governance and e-commerce.
•Facilitate electronic governance and commerce: By recognising electronic records and
signatures, the Act facilitates the electronic delivery of government services and transactions
between businesses and consumers.
•Define and penalise cybercrimes: The Act defines various cybercrimes i.e. hacking, data
theft, identity theft, cyberstalking, etc., and prescribes penalties for such offences. This
creates a safe and secure cyber environment.
•Regulate cyber activity: The Act empowers the central government to formulate rules to
govern the use of electronic mediums for online communication and commerce.
• Establish institutional mechanisms: The Act establishes mechanisms like adjudicating
officers, appellate tribunals, and regulatory authorities to enforce the provisions of the Act.
•Enable data protection: The Act establishes the necessary Institutional and legal
framework for protecting sensitive electronic data and ensuring data security.
•Promote growth of the IT sector: By providing a comprehensive legal framework for
digital technologies, the Act promote growth of the Indian IT sector.
•Foster innovation: By promoting confidence in digital technologies, the Act encourages
innovation in the information technology space.
 Chapter VI deals with the Regulation of Certifying Authorities

Sec. 18, Functions of Controller:

• Supervising the activities of the Certifying Authorities.
• Certifying public keys of the Certifying Authorities.
• laying down the standards to be maintained by the Certifying Authorities.
• Specifying the qualifications of the Certifying Authority employees.
• Specifying the conditions for the Certifying Authorities to conduct their business.
• Specifying the contents of written, printed, or visual materials and advertisements that may be
distributed or used in respect of an Electronic signature Certificate and the public key.
• Specifying the form and content of an electronic signature Certificate and the key.
• Specifying the form and manner for the Certifying Authorities to maintain accounts.
• Specifying the terms and conditions for the appointment of auditors and their remuneration.
• Facilitating the establishment of any Electronic system by a Certifying Authority either solely
or jointly with other Certifying Authorities and regulation of such systems.
• Specify the conditions for Certifying Authorities to deal with the subscribers.
• Resolving any conflict of interest between the Certifying Authorities and the subscribers.
• Laying down the duties of the Certifying Authorities.
• Maintaining a database to disclose the records of every Certifying Authority as per regulation,
accessible to the public.
 E-Commerce and E-Contracts Preamble of IT Act, 2000

• Electronic Commerce- An act to provide legal recognition for transactions through

electronic data interchange and other electronic communication.
• It involves Paperless Electronic Data Exchange for communication and storage of
information.
• The United Nations Electronic Data Interchange for Administration, commerce, and
Transport 1986 - ensured the transmission of electronic business documents globally.

• E-commerce in its present form works as an internet-enabled Electronic Data Interchange

(EDI) system.
• To secure the E-commerce, Digital Signatures were adopted (block of data at the end of
an electronic message that attests to the authenticity of the message).

• Adopts the technology that makes communication or transactions legally binding – In the
form of data, encryption based on asymmetric i.e. cryptography & Public key.

• e- contracts are enforceable were the contract formation, communication of

proposal, acceptance of a proposal, revocation of proposal happens through an
electronic medium.

• Sec. 10 A of IT Act 2000- enumerates the validity of e-contracts.

 The Government of India’s Internet Policy

•Internet Censorship- The government regulates and blocks internet content through DNS
(Domain Name System) filtering, educating users, and court orders.

•Digital Personal Data Protection Act, 2023- This act protects individuals' personal data by
establishing principles such as obtaining consent for data use, limiting data collection, and
implementing security measures.

•National Information Security Policy & Guidelines- This policy protects information under
the control of the government and public sector organisations.

•Internet Governance- The Indian government retains supreme rights and control on matters
relating to national security.
• Policy on Use of IT Resources of Government of India 2014- It covers access to the
internet and intranet, monitoring and privacy, and the use of IT devices.
• Government provides IT resources to its employees to enhance their efficiency and
productivity.
• Designated Nodal Officer as identified by each organization.
• Implementing Agency
• Access to Government Wireless Networks
• Filtering and blocking of sites
• Monitoring and Privacy
• E-mail Access from the Government Network
• Control of Social Media Sites from Government
• Security Incident Management Process