UNIT 4

Intellectual Property
1. Intellectual property is an intangible creation of the human mind, usually
expressed or translated into a tangible form that is assigned certain rights of
property.
2. Examples of intellectual property include an author's copyright on a book or article, a
distinctive logo design representing a company and its products, etc.
Intellectual Property Rights :
1. Intellectual property rights (IPR) can be defined as the rights given to people over the
creation of their minds.
2. They usually give the creator an exclusive right over the use of his/her creations for a
certain period of time.
3. Intellectual property (IP) refers to creations of the mind: inventions, literary and
artistic works, symbols, names, images, and designs used in commerce.
IP is divided into two categories for ease of understanding :
1. Industrial property : It includes inventions (patents), trademarks, industrial
designs, and geographic indications of source.
2. Copyright :
a. It includes literary and artistic works such as novels, poems and plays, films, musical
works, artistic works such as drawings, paintings, photographs and sculptures, and
architectural designs.
b. Rights related to copyright include those of performing artists in their performances,
producers of phonograms in their recordings, and those of broadcasters in their radio
and television programs.

Infringing and Non-Infringing activities

A. Infringing activities :
1. The Patents Act, 1970, does not exactly list down activities which would be
considered infringing.
2. Having said that, Section 48 of the Act confers exclusive rights to the patentee to
prevent third parties from making, using, offering for sale, selling or importing the
patented invention for the purpose of using, selling and offering for sale in India
without the consent of the patentee.
3. Therefore, one can presume that any act of a third party which violates the rights
conferred upon the patentee, shall be considered an act of infringement.
B. Non-infringing activities :
1. The Patents Act 1970, in Sections 47, 49 and 107A defines certain activities related to
the patented invention which are not considered as infringing activities.
2. They can be called the statutory exemptions to infringement.
3. The statutory exemptions to infringement are :
i. Government use.
ii. Exemptions for research and development.

iii. Supply of medicinal drug to medical institutions by Government.

iv. Patented invention used on foreign vessels.

v. Bolar exemptions and parallel imports.

Copyright Infringement
1. Copyright is a negative right that lets the owner enjoy exclusive right over his/her
Work without any hindrance from others.
2. If the Work is used/ exploited by any person other than the owner without his/her
authorization, it constitutes an infringement of copyright in the Work.
3. Copyright infringement can be primary or secondary.
4. In case of primary infringement, the infringer copies the original work without the
owner's authorization, whereas secondary infringement covers unauthorized dealings
such as selling of infringing copies of the Work, etc.
5. According to the Copyrights Act, 1957, copyright in a Work shall be deemed to be
infringed when :
i. Unauthorized use of the exclusive rights of the owner of Copyrights under the Act
by any other person;
ii. Permitting a place for the communication of the Work to the public for a profit;
iii. Make or let for sale or hire copyrighted Work without authorization of the owner;
iv. Distribution or exhibition of infringing copies for trade and personal gains;
v. Importing of infringing copies into India.

Remedies for Copyright Infringement

A. Civil Remedies :
1. The Copyrights Act, 1957 states that in case of infringement, the owner of Copyright
shall be entitled to all such remedies by way of injunction, damages, and accounts.
2. Depending upon the facts and circumstances of each case following orders are
commonly passed by the Indian Courts in case of infringement of Copyrights :
a. Interlocutory injunction, i.e., a temporary injunction against infringement of
copyrights till final disposal of the suit.
 b. Anton Pillar order, i.e., an order permitting the copyright owner along with a
Local Commissioner appointed by the Court to search the premises and seize the
infringing goods.
c. John Doe order, i.e., cease and desist orders passed by the Court against
unknown infringers. In such cases, the identity of the infringer is unknown to
the Plaintiff and is referred to as “John Doe” till the identity becomes known.
B. Criminal Remedies :
1. Section 63 of the Act states that criminal proceedings can be initiated against the
infringer by the owner of copyright and the punishment towards the same shall be
imprisonment of at least 6 months which may be extended to 3 years with a fine of
INR 50,000, which may extend to INR 2 lakhs.
2. In case of criminal action, any police officer, not below the rank of Sub- Inspector, is
permitted to seize the infringing copies without a warrant and produce them before a
Magistrate.

Right to Information (RTI) Act, 2005

1. Right to Information Act 2005 mandates timely response to citizen requests for
government information.
2. The act is one of the most important acts which empower ordinary citizens to question
the government and its working.
3. This has been widely used by citizens and media to uncover corruption, progress in
government work, expenses related information, etc.
4. All constitutional authorities, agencies, owned and controlled, also those organisations
which are substantially financed by the government comes under the purview of the
act.
5. The act also mandates public authorities of union government or state government, to
provide timely response to the citizen’s request for information.
6. The act also imposes penalties if the authorities delay in responding to the citizen in
the stipulated time.
Types of information requested through RTI :
1. The citizens can seek any information from the government authorities that the
government can disclose to the parliament.
2. Some information that can affect the sovereignty and the integrity of India is
exempted from the purview of RTI.
3. Information relating to internal security, relations with foreign countries, intellectual
property rights, cabinet discussions are exempted from RTI.

Objectives of the Right to Information Act, 2005

1. Empower citizens to question the government.
2. The act promotes transparency and accountability in the working of the government.
3. The act also helps in containing corruption in the government and work for the
people in a better way.
4. The act envisages building better-informed citizens who would keep necessary vigil
about the functioning of the government machinery.

Information Technology Act, 2000

i. The Information Technology Act, 2000 provide legal recognition for transactions
carried out by means of electronic data interchange and other means of electronic
communication, commonly referred to as "electronic commerce", which involve the
use of alternatives to paper- based methods of communication and storage of
information, to facilitate electronic filing of documents with the Government agencies.
ii. Some highlights of the Act are listed below :
1. Use of Digital Signature to authenticate an electronic record.
2. Details about Electronic Governance.
3. Scheme for regulation of Certifying Authorities.
4. Penalties and adjudication for various offences.
5. Establishment of the Cyber Regulations Appellate Tribunal.
6. Various offences and the said offences investigated only by a Police Officer not below
the rank of the Deputy Superintendent of Police.
7. Constitution of the Cyber Regulations Advisory Committee.

Secure Electronic Records and Digital Signatures

1. Secure Electronic Record :
Section 14 lays down that, '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'.
2. Secure Electronic Signature (Digital Signature) :
Section 15 lays down that 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

Digital Signature Certificate

1. Digital Signature Certificates (DSC) are the digital equivalent (electronic format) of
physical or paper certificates.
2. 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 :
A. Class 2 Digital Signature Certificate :
1. The main function of this certificate is to authenticate the details of the signer.
2. It re-affirms the already mentioned data of the user.
3. It is used in various form-filling, online registration, email attestation, income tax
filing and etc.
B. Class 3 Digital Signature Certificate :
1. This is the safest of all certificates. It is used in matters of high security and safety.
2. It is mainly used in online trading and e-commerce, where a huge amount of money or
highly confidential information is involved.

L i m i t at i o n s o f t h e Information Technology Act, 2000

1. The Information Technology Act has been successful in setting down the framework
of regulations in Cyber Space and addresses a few pressing concerns of misuse of
technology.
2. However there are few serious gaps in the Act that have not been discussed.
3. Many experts argues that the Act is toothless legislation which has not been
completely effective in issuing penalties or sanctions against perpetrators who choose
to misuse the reach of cyberspace.
4. Following are certain areas of cyber laws which need attention :
A. Spamming :
1. A spam is an unsolicited bulk e-mail. Initially, it was viewed as a mere nuisance but
now it is posing major economic problems.
2. The Information Technology Act does not discuss the issue of spamming at all.
3. The USA and the European Union have enacted anti-spam legislation.
B. Phishing :
1. Phishing is the criminally fraudulent process of acquiring sensitive information such
as usernames, passwords, and credit card details, by pretending as a trustworthy entity
in electronic communication.
2. There is no law against phishing in the Information Technology Act through the Indian
Penal Code talks about cheating, it is not sufficient to check the activity of phishing.
C. Data Protection in Internet Banking :
1. Data protection laws primarily aim to safeguard the interest of the individual whose
data is handled and processed by others.
2. India has no law on data protection.
3. The Information Technology Act talks about unauthorized access but it does not talk
about maintaining the integrity of customer transactions.
D. Privacy Protection :
1. Privacy and data protection are important issues that need to be addressed today as
information technology assumes greater importance in personal, professional and
commercial spheres.
2. The absence of a specific privacy law in India has resulted in a loss of substantial
foreign investment and other business opportunities.
E. Identity Theft :
1. Identity theft worldwide is a growing problem. IT act 2000 fails to address this
issue.
F. Cyber War :
1. The issue of Cyber War has also not been discussed in the Act.