Module 4

Intellectual Property
Laws and Regulation
to Information
 Intellectual Property
Intellectual property (IP) is a category of property that includes intangible creations of
the human intellect. There are many types of intellectual property, and some countries
recognize more than others. The most well-known types are copyrights, patents,
trademarks, and trade secrets. The modern concept of intellectual property developed in
England in the 17th and 18th centuries. The term "intellectual property" began to be
used in the 19th century, though it was not until the late 20th century that intellectual
property became commonplace in the majority of the world's legal systems.
The main purpose of intellectual property law is to encourage the creation of a wide
variety of intellectual goods. To achieve this, the law gives people and businesses
property rights to the information and intellectual goods they create, usually for a limited
period of time. This gives economic incentive for their creation, because it allows people
to profit from the information and intellectual goods they create. These economic
incentives are expected to stimulate innovation and contribute to the technological
progress of countries, which depends on the extent of protection granted to innovators.
 Intellectual Property Laws
With the rapid globalisation and opening up of the Indian economy,
"Intellectual Capital" has become one of the key wealth drivers in the present
international trade. Intellectual property rights have become significantly
conspicuous on the legal horizon of India both in terms of new statutes and
judicial pronouncements. India ratified the agreement for establishing the
World Trade Organization (the "WTO"), which contains the Agreement on
Trade Related Aspects of Intellectual Property Rights (TRIPS). Indian Statutes,
enforcement provisions and methods of dispute resolution with respect to
intellectual property (IP) protection are now fully TRIPS-compliant.
 Patent
A patent is a form of intellectual property that gives its owner the legal right to
exclude others from making, using, or selling an invention for a limited period of
years in exchange for publishing an enabling public disclosure of the invention. In
most countries, patent rights fall under private law and the patent holder must sue
someone infringing the patent in order to enforce his or her rights. In some
industries patents are an essential form of competitive advantage; in others they are
irrelevant.
The procedure for granting patents, requirements placed on the patentee, and the
extent of the exclusive rights vary widely between countries according to national
laws and international agreements. Typically, however, a patent application must
include one or more claims that define the scope of protection that is being sought.
A patent may include many claims, each of which defines a specific property right.
These claims must meet various patentability requirements, which in the US
include novelty, usefulness, and non-obviousness.
 Legal Aspects of Patents
India’s patent law dates back to nearly 150 years. The 1856 Act was known as
the Act VI of 1856 on protection of inventions and was based on the British
Patent Law of 1852. This Act granted certain exclusive privileges to the
inventors of new inventions for a period of 14 years. This Act was later repealed
and The Patents and Designs Protection Act was formally made public in 1872.
This Act was amended from time to time. It was changed to “The Protection of
Inventions Act” in 1883 and in 1888 this was changed to “The Inventions and
Designs Act”. Finally, in 1911 “The Indian Patents and Designs Act” was
promulgated. After India gained independence in 1947, it still followed the old
British Law. It was only in 1965 when a patent bill was placed before the
Parliament and was passed as the Indian Patent Act of 1970. The Act came into
force on April 20, 1972. This Act was further amended in 1999 and the Patents
(Amendment) Act, 1999 got assent of the President on March 26, 1999.
India joined the World Trade Organization (WTO) in 1995 and automatically
became a signatory of the Agreement on Trade-Related Aspects of International
Property Rights (TRIPS) in 1995. Under its requirements, India needed to
amend its patent law subject to transitional allowances provided for developing
countries under Article 65 of TRIPS.
In order to meet the TRIPS requirements the Patents (Amendment) Act 2002
came into effect on May 20, 2003 and from January 1, 2005 the Patents
(Amendment) Act 2005 has been given effect. The Patents (Amendment) Act
2005 takes care of India’s TRIPS compliance requirement. The latest
amendment in the year 2005 meet India’s obligation under the Act TRIPS
agreement and provides for product protection in the field of drugs,
pharmaceuticals and chemicals.
 Filing of Patent
Applications
Patent filling is straight forward process that requires
proper documents and is a fairly complicated ordeal.
Here are the steps you need to follow to get your
invention registered as a patent:
Step 1- Patent search:
The invention should be unique and obvious to get
registered. For this purpose you need to carry out
patent search. It can help you to avoid lengthy patent
registration process. A patentee can carry out patent
search by himself or take a help from an experienced
person in this field. You can skip further, steps if you
find a similar patent registered.
Step 2- Filling patent registration application:
An application needs to be filed in a prescribed format that involves:
•Ideation: clearly write down the idea or concept behind your invention and
mention the key details regarding the invention and the desired patent.
•Visualisation: Visualize your idea and elements in forms of diagrams to
explain your invention in detail.
•Verification: verify the Novelty, Non-obviousness and Usefulness of your
patent to make it capable as per the requirements of patent registration act.
Step 3- Preparation of patentability report and attach all the required
documents:
You can take help of experts to form an extensive patentability report which
includes all the analysis of your patent search based upon required criteria.
Attach all the required documents with the application before submission and
review your application again to avoid any kind of mistake.
Step 4- Review of application:
Once you have submitted the application along with all the required
documents and patentability report it shall be further reviewed by the
authorities of patent office of the Indian government. However, if your patent
is unique and fulfils all the requirements then you will be granted with patent
registration.
Step 5- Issuance of patent registration certificate:
The application status of the patent registration will get updated online on the
website of the Department of Industrial Policy & Promotion, Ministry of
Commerce & Industry, and Government of India. It takes around a time period
of 1 year to get the patent certificate.
 Rights from Patents
A patent owner has the right to decide who may – or may not – use the
patented invention for the period in which the invention is protected. In other
words, patent protection means that the invention cannot be commercially
made, used, distributed, imported, or sold by others without the patent owner's
consent.
Patents may be granted for inventions in any field of technology, from an
everyday kitchen utensil to a nanotechnology chip. An invention can be a
product – such as a chemical compound, or a process, for example – or a
process for producing a specific chemical compound. Many products in fact
contain a number of inventions. For example, a laptop computer can involve
hundreds of inventions, working together.
Patent protection is granted for a limited period, generally 20 years from the
filing date of the application.
 Infringement of Patents
Patent infringement(पेटेंट उल्लंघन) means the violation of the exclusive rights of
the patent holder. As discussed earlier, patent rights are the exclusive rights
granted by the Government to an inventor over his invention for a limited
period of time. In other words, if any person exercises the exclusive rights
of the patent holder without the patent owner's authorization then that
person is liable for patent infringement. Sections 104-114 of the Patents Act,
1970 provide guidelines relating to patent infringement.
Unlike the Design law, the Patents law does not specify as to what would
constitute infringement of a patented product or process. However, the
following acts when committed without the consent of the patentee shall
amount to infringement:
(i) making, using, offering for sale, selling, importing the patented product;
(ii) using the patented process, or using, offering for sale, selling or
importing the product directly obtained by that process
 Types of Infringement (उल्लंघन)
There are two kinds of infringement :
Direct Infringement
Direct patent infringement is the most obvious and the most common form of patent
infringement. Basically, direct patent infringement occurs when a product that is
substantially close to a patented product or inventions marketed, sold, or used
commercially without permission from the owner of the patented product or invention.

Indirect Infringement
Indirect patent infringement suggests that there was some amount of deceit or accidental
patent infringement in the incident. For instance, A holds a patent for a device and B
manufactures a device which is substantially similar to the A’s device. B is supplied with a
product from another person C to facilitate manufacturing of the B’s device. If the device
so manufactured by B infringes upon A’s patent, then the person C indirectly infringes A’s
patent. Further, if such a product is knowingly sold or supplied, it may lead to
“contributory infringement”. In the above example, if the person C knowingly supplies
the product to B then the infringement is construed as contributory infringement.
 Copyright and its Ownership
Owners hold specific rights but not all rights.
The law grants to owners a set of specified rights: reproduction of works;
distribution of copies; making of derivative works; and the public performance
and display of works. Some artworks have "moral rights" regarding the name of
the artist on the work, or preventing destruction of some works. Owners may also
have rights to prevent anyone from circumventing technological protection
systems that control access to the works.
Author is the copyright owner.
As a general rule, the initial owner of the copyright is the person who does the
creative work. If you wrote the book or took the photograph, you are
the copyright owner.
Employer may be the copyright owner.
If you created the work as an employee, acting within the scope of your employment,
the work may be a "work made for hire." In that event, the copyright owner is the
employer. If you are an employee, and your job is to create software code, the
copyright probably belongs to your employer.
Copyrights can be transferred.
The law may make you or your employer the copyright owner, but the law also allows
the owner to transfer the copyright. With a written and signed instrument, your
employer can give you the copyright. In the academic setting, we are frequently asked
to transfer copyrights in our books and articles to publishers. The ability to transfer or
retain our copyrights is an opportunity to be good stewards of our intellectual works.
Copyright owners may allow public uses.
A copyright owner may grant rights to the public to use a protected work. That grant
could be a simple statement on the work explaining the allowed uses, or it may be a
selection of a Creative Commons license. Similarly, the movement to make
works "open access" or "open source" is a choice by the owner of rights to make works
available to the public.
 Infringement of Copyright
Owners develop new work and get copyright protection to ensure that they can
get profit from their efforts. Owner has sole authority either to sell his work or to
license it to the third party who can make use of his work but if someone
duplicates or reproduces the work of copyright holder without the latter's
permission, then this can lead to copyright infringement, in which owner can take
legal action against the infringer.
Exception to Infringement under Sec.52 of The Copyright Act, 1957
•Private or personal use, including research
•Criticism or review, whether of that work or any other work
•The reporting of current events and current affairs, including the reporting of a
lecture delivered in public.
 Civil Remedies for Infringement
Remedies for Infringement of Copyright (कॉपीराइट के उल्लंघन के लिए उपाय)
1.Civil remedy: According to Section 55 of The Copyright Act, 1957, where
copyright in any work has been infringed upon, the owner of the copyright shall
be entitled to all such remedies by way of injunction, damages, & accounts.
2.Criminal remedy: According to Section 63 of The Copyright Act, 1957, the
copyright holder can take criminal proceedings against the infringer, in which
there is a provision of at least six-month imprisonment, which may be extended
to 3 years and with a fine of Rs. 50,000, which may extend to 2 lakhs.
Provided that if the defendant proves that at the date of the infringement he was
not aware and had no reasonable ground for believing that copyright subsisted in
the work, the plaintiff shall not be entitled to any remedy for the whole or part of
the profits made by the defendant by the sale of the infringing copies as the
court may in the circumstances deem reasonable.
 Right to Information Act, 2005
Right to Information (RTI) is an act of the Parliament of India which sets out
the rules and procedures regarding citizens' right to information. It replaced the
former Freedom of Information Act, 2002. Under the provisions of RTI Act, any
citizen of India may request information from a "public authority" (a body of
Government or "instrumentality of State") which is required to reply
expeditiously or within thirty days. In case of matter involving a petitioner's life
and liberty, the information has to be provided within 48 hours. The Act also
requires every public authority to computerize their records for wide
dissemination and to proactively publish certain categories of information so that
the citizens need minimum recourse to request for information formally.
This law was passed by Parliament of India on 15 June 2005 and came fully into
force on 12 October 2005. Every day on an average, over 4800 RTI applications
are filed. In the first ten years of the commencement of the act over 17,500,000
applications had been filed.
Governance and process
The Right to information in India is governed by two major bodies:
•Central Information Commission (CIC) – Chief Information
commissioner who heads all the central departments and ministries-
with their own public Information officers (PIO)s. CICs are directly
under the President of India.
•State Information Commissions – State Public Information Officers
or SPIOs head over all the state department and ministries. The SPIO
office is directly under the corresponding State Governor.
State and Central Information Commissions are independent bodies
and Central Information Commission has no jurisdiction over the
State Information Commission.
 Information Technology Act, 2000
Provisions of IT Act 2000
• The IT Act of 2000 passed in a budget session of parliament and signed by
President K.R. Narayanan in 2000. It underwent further finalization by India's
Minister of Information Technology, Pramod Mahajan.
• The original act addressed electronic documents, e-signatures, and
authentication of those records. It also enacted penalties for security breach
offenses including damaging computer systems or committing cyber
terrorism. Regulating authorities received power to monitor these situations
and draft rules as situations arose.
• The IT Act underwent changes as Internet technology grew. In 2008, additions
expanded the definition of "communication device" to include mobile
devices and placed owners of given IP addresses responsible for distributed
and accessed content.
• Privacy was addressed in 2011 when stringent requirements for collecting
personal information came into effect.
• The most controversial change in this act involves section 66A. It makes
"offensive messages" illegal and holds the owners of servers responsible for
the content.
• That means if an IP address with pornographic images is traced to your
servers, you can be held liable for it even if you did not authorize its access.
• Penalties arrange from imprisonment of three years to life and fines.
Offenses that occur in a corporate setting can result in further administrative
penalties and bureaucratic monitoring that can prove burdensome to doing
business.
 Electronic Governance
Electronic governance or e-governance is the application of IT for delivering
government services, exchange of information, communication transactions,
integration of various stand-alone systems between government to citizen
(G2C), government-to-business (G2B), government-to-government (G2G),
government-to-employees (G2E) as well as back-office processes and
interactions within the entire government framework. Through e-governance,
government services are made available to citizens in a convenient, efficient,
and transparent manner. The three main target groups that can be distinguished
in governance concepts are government, citizens, and businesses/interest
groups. In e-governance, there are no distinct boundaries, finance and support.
Government to citizen (G2C)
The goal of government-to-citizen (G2C) e-governance is to offer a variety of
ICT services to citizens in an efficient and economical manner and to strengthen
the relationship between government and citizens using technology.
There are several methods of G2C e-governance. Two-way communication
allows citizens to instant message directly with public administrators, and cast
remote electronic votes (electronic voting) and instant opinion voting. These are
examples of e-Participation. Other examples included the payment of taxes and
services that can be completed online or over the phone. Mundane services such
as name or address changes, applying for services or grants, or transferring
existing services are more convenient and no longer have to be completed face to
face.
Government to employees (G2E)
E-governance to Employee partnership (G2E) Is one of four main primary
interactions in the delivery model of E-governance. It is the relationship between
online tools, sources, and articles that help employees to maintain the
communication with the government and their own companies. E-governance
relationship with Employees allows new learning technology in one simple place
as the computer. Documents can now be stored and shared with other colleagues
online. E-governance makes it possible for employees to become paperless and
makes it easy for employees to send important documents back and forth to
colleagues all over the world instead of having to print out these records or fax[11]
G2E services also include software for maintaining personal information and
records of employees. Some of the benefits of G2E expansion include:
•E-payroll – maintaining the online sources to view paychecks, pay stubs, pay
bills, and keep records for tax information.
•E-benefits – be able to look up what benefits an employee is receiving and what
benefits they have a right to.
•E-training – allows for new and current employees to regularly maintain the
training they have through the development of new technology and to allow new
employees to train and learn over new materials in one convenient location. E-
learning is another way to keep employees informed on the important materials
they need to know through the use of visuals, animation, videos, etc. It is usually
a computer-based learning tool, although not always. It is also a way for
employees to learn at their own pace (distance learning), although it can be
instructor-led.
•Maintaining records of personal information – Allows the system to keep all
records in one easy location to update with every single bit of information that is
relevant to a personal file. Examples being social security numbers, tax
information, current address, and other information
Government to Government (G2G)
The purpose to include e-governance to government is to means more efficient in
various aspects. Whether it means to reduce cost by reducing paper clutter,
staffing cost, or communicating with private citizens or public government. E-
government brings many advantages to play such as facilitating information
delivery, application process/renewal between both business and private citizen,
and participation with the constituency. There are both internal and external
advantages to the emergence of IT in government, though not all municipalities
are alike in size and participation.
In theory, there are currently 4 major levels of E-government in municipal
governments:
•The establishment of a secure and cooperative interaction among governmental
agencies
•Web-based service delivery
•The application of e-commerce for more efficient government transactions
activities
•Digital democracy
These, along with 5 degrees of technical integration and interaction of users
include:
•Simple information dissemination (one-way communication)
•Two-way communication (request and response)
•Service and financial transactions
•Integration (horizontal and vertical integration)
•Political participation
Government to business (G2B)
Government-to-Business (G2B) is the online non-commercial interaction between
local and central government and the commercial business sector with the purpose of
providing businesses information and advice on e-business best practices. G2B:
Refers to the conduction through the Internet between government agencies and
trading companies. B2G: Professional transactions between the company and the
district, city, or federal regulatory agencies. B2G usually include recommendations
to complete the measurement and evaluation of books and contracts.
The objective of G2B is to reduce difficulties for business, provide immediate
information and enable digital communication by e-business (XML). In addition, the
government should re-use the data in the report proper, and take advantage of
commercial electronic transaction protocol. Government services are concentrated
on the following groups: human services; community services; judicial services;
transport services; land resources; business services; financial services and
other. Each of the components listed above for each cluster of related services to the
enterprise.
 Secure Electronic Records and
Digital Signatures
Section : 14 Secure Electronic Record
Where any security procedure has been applied to an electronic record at a
specific point of time, then such record shall be deemed to be a secure electronic
record from such point of time to the time of verification.
Section : 15. Secure digital signature
An electronic signature shall be deemed to be a secure electronic signature if-
(i) the signature creation data, at the time of affixing signature, was under the
exclusive control of signatory and no other person; and
(ii) the signature creation data was stored and affixed in such exclusive manner
as may be prescribed
Explanation- In case of digital signature, the “signature creation data” means the
private key of the subscriber
 Digital Signature Certificates
Digital Signature Certificates (DSC) are the digital equivalent (that is
electronic format) of physical or paper certificates. Few Examples of physical
certificates are drivers' licenses, passports or membership cards. Certificates
serve as proof of identity of an individual for a certain purpose; for example, a
driver's license identifies someone who can legally drive in a particular
country. Likewise, a digital certificate can be presented electronically to prove
one’s identity, to access information or services on the Internet or to sign
certain documents digitally.
The different types of Digital Signature Certificates are:
Class 2: Here, the identity of a person is verified against a trusted, pre-verified
data-base.
Class 3: This is the highest level where the person needs to present himself or
herself in front of a Registration Authority (RA) and prove his/ her identity.
 Cyber Regulations Appellate Tribunal
Establishment of Cyber Appellate Tribunal (Section 48)
1.The Central Government notifies and establishes appellate tribunals called
Cyber Regulations Appellate Tribunal.
2.The Central Government also specifies in the notification all the matters and
places which fall under the jurisdiction of the Tribunal.
The composition of Cyber Appellant Tribunal (Section 49)
The Central Government appoints only one person in a Tribunal – the Presiding
Officer of the Cyber Appellate Tribunal.
The qualifications for appointment as Presiding Officer of the Cyber
Appellate Tribunal (Section 50)
A person is considered qualified for the appointment as the Presiding Officer of
a Tribunal if –
He has the qualification of the Judge of a High Court
He is or was the member of the Indian Legal Service and holds or has held a
post in Grade I of that service for at least three years.
Procedure and powers of the Cyber Appellate Tribunal (Section 58)
1.The Code of Civil Procedure, 1908 does not bind the Cyber Appellate Tribunal.
However, the principles of natural justice guide it and it is subject to other provisions of
the Act. The Tribunal has powers to regulate its own procedure.
2.In order to discharge its functions efficiently, the Tribunal has the same powers as
vested in a Civil Court under the Code of Civil Procedure, 1908, while trying a suit in the
following matters:
3. Summoning and enforcing the attendance of any person and examining him under oath
4. Ensuring the availability of the required documents or electronic records
5. Receiving evidence on affidavits
6. Issuing commissions for examining witnesses or documents
7. Reviewing its decisions
8. Dismissing an application for default or deciding it ex-parte, etc.
9.Every proceeding before the Cyber Appellate Tribunal is like a judicial proceeding
within the meaning of sections 193 and 228 and for the purposes of section 196 of the
Indian Penal Code.
 Cyber Offences / Cyber Crime
Cyber-crime usually includes the following −
•Unauthorized access of the computers
•Data diddling
•Virus/worms attack
•Theft of computer system
•Hacking
•Denial of attacks (Disrupting services of a host connected to the Internet)
•Logic bombs (A logic bomb is a piece of code intentionally inserted into a software system)
•Trojan attacks
•Internet time theft (Theft in a manner where the unauthorized person uses internet hours paid by another person)
•Web jacking (When someone clones your website and tricks you to believe the cloned site is yours)
•Email bombing
•Salami attacks (A salami attack is when small attacks add up to one major attack)
•Physically damaging computer system.
The offences included in the I.T. Act 2000 are as follows −
•Tampering with the computer source documents.
•Hacking with computer system.
•Publishing of information which is obscene in electronic form.
•Power of Controller to give directions.
•Directions of Controller to a subscriber to extend facilities to decrypt
information.
•Protected system.
•Penalty for misrepresentation.
•Penalty for breach of confidentiality and privacy.
•Penalty for publishing Digital Signature Certificate false in certain particulars.
•Publication for fraudulent purpose.
•Act to apply for offence or contravention committed outside India Confiscation.
•Penalties or confiscation not to interfere with other punishments.
•Power to investigate offences.
Section Offence Penalty
Tampering with computer Imprisonment up to three years, or/and
65
source documents with fine up to ₹200,000
Imprisonment up to three years,
66 Hacking with computer system
or/and with fine up to ₹500,000
Receiving stolen computer or Imprisonment up to three years, or/and
66B
communication device with fine up to ₹100,000
Imprisonment up to three years,
66C Using password of another perso
n or/and with fine up to ₹100,000
Imprisonment up to three years, or/and
66D Cheating using computer resource
with fine up to ₹100,000
Imprisonment up to three years, or/and
66E Publishing private images of others
with fine up to ₹200,000
66F Acts of cyberterrorism Imprisonment up to life.
 Publishing information which is Imprisonment up to five years, or/and
67
obscene in electronic form. with fine up to ₹1,000,000
Publishing images containing Imprisonment up to seven years,
67A
sexual acts or/and with fine up to ₹1,000,000
Imprisonment up to five years, or/and
with fine up to ₹1,000,000 on first
Publishing child porn or
67B conviction. Imprisonment up to seven
predating children online
years, or/and with fine up to ₹
1,000,000 on second conviction.
Imprisonment up to three years, or/and
67C Failure to maintain records
with fine.
Failure/refusal to comply with Imprisonment up to 2 years, or/and with
68
orders fine up to ₹100,000
Imprisonment up to seven years and
69 Failure/refusal to decrypt data
possible fine.
 Securing access or attempting to Imprisonment up to ten years, or/and
70
secure access to a protected system with fine.
Imprisonment up to 2 years, or/and
71 Misrepresentation
with fine up to ₹100,000
Breach of confidentiality and Imprisonment up to 2 years, or/and with
72
privacy fine up to ₹100,000
Disclosure of information in breach Imprisonment up to 3 years, or/and with
72A
of lawful contract fine up to ₹500,000
Publishing electronic signature
Imprisonment up to 2 years, or/and with
73 certificate false in certain
fine up to ₹100,000
particulars
Publication for fraudulent Imprisonment up to 2 years, or/and
74
purpose with fine up to ₹100,000
 Limitations of the Information Technology Act
According to Section 1 (4) of the Information Technology Act, 2000, the Act is
not applicable to the following documents:
1.Execution of Negotiable Instrument under Negotiable Instruments Act, 1881,
except cheques.
2.Execution of a Power of Attorney under the Powers of Attorney Act, 1882.
3.Creation of Trust under the Indian Trust Act, 1882.
4.Execution of a Will under the Indian Succession Act, 1925 including any other
testamentary disposition
by whatever name called.
5.Entering into a contract for the sale of conveyance of immovable property or
any interest in such property.
6.Any such class of documents or transactions as may be notified by the Central
Government in the Gazette.