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Intellectual Property and the Internet

  • Intellectual Property: Use and Strategy
  • Intellectual Property: Best Practices
  • The Legal Framework in Cyberspace: the Indian Information Technology Act, 2000
  • Trademarks on the Internet: First Generation Issues Domain Names; Second Generation
    Issues – Metatags, Linking
  • Copyright: Online Content and Digital Rights Management
  • Anti Circumvention: Legal and Technological Issues

The Uses of Intellectual Property – I

  • Defensive: Creation and protection of Intellectual Property to improve market position
  • Income creating: With the need to increase profits, most large companies have come to realize that a defensive posture, while important, is not always sufficient. To obtain the maximum value from their assets, they need to develop licensing strategies that provide additional income
  • Strategic: Truly creative companies use IP as a business tool to leverage their entrance into a new product and geographic areas and as a bargaining
    chip in business deals Rodney D. Ryder ANM Global

The Uses of Intellectual Property – II

  • Defensive
  • Cost Control
  • Profit Centre
  • Integrated
  • Visionary

The Information Technology Act and Intellectual Property [I]

  • The Information Technology Act, 2000 in a phrase: functional equivalence
  • Amends the Indian Evidence Act, 1872 and the Indian Penal Code
  • Understanding the role of the medium connects traditional evidence law to the Internet
  • Adaptability and Enforcement of Indian law Sections 65B inserted in the Evidence Act on the production of electronic documents

The Information Technology Act and Intellectual Property [II]

  • The Basics: the machine and the medium What is a Cybercrime?
  • The criminal act discovery [detection] and analysis
  • The Cybercrime Manual fostering preparedness
  • Focussing on relevant issues and appropriate classification of offences
  • Facilitates Cyber forensics and the collection of evidence
  • Crisis management [internal and external]

Duties under the Indian Information Technology Act

  • Duty of the Organisation maintain reasonable security practices and procedures [Section 43A] What is a reasonable Corporate Security System? [ISO 27001/27002]
  • Offences by Companies [Section 85] every person who, at the time the contravention was committed, was in charge of, and was responsible to, the company for the conduct of business of the company as well as the company
  • Duties may be interpreted to include the management of confidential information and intellectual property

The Information Technology Act, 2000 [Amended 2008] < Intermediaries: Liability >

Section 2 [w] of The Indian Information Technology Act, 2000 [Amended in 2008] defines ‘Intermediary’: Intermediary, with respect to any particular electronic records, means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record.

And includes telecom service providers, network service providers, internet service providers, web-hosting service providers, search engines, online payment sites, online-auction sites, online-market places and cyber cafes.

Intermediary Liability – Distribution of content: [a] copyright violations [music, films, images]; [b] prohibited content [hate, racism, pornography]
Case Study / Illustration: Baazee Case [Sale of the MMS Clip]

Intermediary Liability Notice and Take-Down Provisions

  • All intermediaries must appoint Grievance Officers
  • Liability from Knowledge Response to the Notice Acknowledgement within 36 hours [mandatory under the Rules]
  • Time given to respond in full measure a maximum of 21 days under the Rules
  • Non-Compliance would mean that the intermediary is liable for the offence for which the notice is issued

Indian E-Commerce Portals

Reporting Counterfeit Items on Indian E-Commerce Sites: Practice and Procedure for Rightsholders

  • Collection of Evidence From Screenshots to placing an order as evidence for an enforcement action
  • Notice under Section 79 [Information Technology Act] and the Intermediary Guidelines
  • The Indian E-Commerce Site could be liable if it does not have a written policy on compliance with the Intermediary Guidelines or has not appointed a Grievance Officer
  • Response from the E-Commerce Site [a] take-down of infringing articles; [b] details of the activities of the illegal seller/infringer
  • If no response or unsatisfactory response a legal action can be filed in a court in India

Collecting Evidence from Indian E-Commerce Sites: Practice and Procedure for Rightsholders

  • A screenshot of a key Web page is like taking a photograph of the image as it appears on the monitor. It can be admitted as evidence under Indian law.
  • If proper steps are not taken to admit the evidence, however, the value of this information may be lost, as courts are highly suspicious of evidence taken from the Internet. The evidence must be accompanied by an affidavit pursuant to Section 65B, Indian Evidence Act, 1872.
  • This testimony typically must answer the following questions: [a] What was actually on the Web site? [b] Does the exhibit or testimony accurately reflect it? [c] If so, is it attributable to the owner of the site?
  • Section 65B lays the foundation ‘ any information in electronic form is deemed to be a document.’
  • Conditions under Section 65B [a] the computer output containing the information should have been produced by the computer during the period in questions; [b] information derived was fed into the computer, ‘ in regular course.’ [c] during this period the computer should have been operating properly; [d] the information should be a ‘reproduction’ of information in the computer resource.
  • The affidavit relating to the computer resource and its output should be signed by a person occupying a responsible official position in relation to the operation of the device