ABS Technology and The Law EPGP

Technology and the Law
Prof. Anil B. Suraj

Session Objectives
• To appreciate the importance of and the

criteria to – recognize, establish and
enforce – intellectual property rights
• To understand the prevalent legal

principles of Data protection and other
aspects of Cyber Law
Intellectual Property Rights
IPRs – Basis & Rationale
• Economic (and technological) rationale –
aids overall development
• Social benefits – enriches Public Domain

and furthers Basic Research
• IPRs are legally monopolistic – need to be

fairly enforced/regulated
Forms of IPRs
• Patents – Patents Act, 1970
• Copyrights – Copyright Act, 1957
• Trade Marks – Trade Marks Act, 1999
• Industrial Designs – Designs Act, 2000

Forms of IPRs …
• Layout Designs of ICs – Semiconductor
Integrated Circuits Layout-Design Act, 2000
• Geographical Indications – Geographical

Indications of Goods (Registration and
Protection) Act, 1999
• Plant varieties – Protection of Plant Varieties

and Farmers’ Rights Act, 2001
Forms of IPRs?
• Traditional Knowledge – partly by Biological
Diversity Act, 2002
– Turmeric and Neem disputes
– Basmati and Yoga controversy
• Trade Secrets – Contractual – no particular

legislation in India
– Latest amendments to the Information Technology
Act – render some protection
– Indian Penal Code – data violation as a crime
Pressures of Enforcement
• IPRs = fiercely competitive usage; justifies
criminal remedies too
– Interim remedies and permanent declarations
– Compensatory remedies based on ‘attributable
profits’
• IPRs and Global recognition

– IPRs are territorial in nature
– Registration is only of presumptive validity
What is a Patent?
• Patent – a monopoly right to an inventor
• 20 year period of monopoly granted for

inventions that satisfy:
– Novelty
– Inventive Step or Non-obviousness
– Utility or industrial application
What can you do with a Patent?
• Section 48 of the Patents Act, 1970:
– Make
– Use
– Sell
– Distribute
– Import
• the invention within India
• Effect of Patents – only territorial

Patent Law in India
• The Patents Act, 1970
• The Patents Rules, 2003
• Registering Authority – Controller General of

Patents, Designs and Trade Marks – HO at
Kolkata – Branches at Chennai, Delhi & Mumbai
• Registration – no guarantee of validity

Non-patentability
• Exclusions – abstract ideas, laws of
nature, natural phenomena
• Section 3 enlists … :
– Medical & Treatment procedures;
– Traditional Knowledge;
– Mathematical or Business methods;
– Computer programs per se or algorithms;
Patent Cooperation Treaty (PCT)
• Treaty for International rationalization and
cooperation in:
– Filing;
– Searching;
– Examination; of Patent specifications
– Dissemination of technical information contained in
various applications
• No grant of “international patents” – procedural

facilitation – ultimate grant by countries only
Patent Applications
• Who can apply for a Patent?
– “True and first inventor” principle – idea,
effort and disclosure
– Even through an assignee or a Legal
representative
• Firms/Corporations – cannot be inventors

– but can apply as assignees or joint
holders
COPYRIGHTS
• Statutorily provided privilege to authors,
aiming towards:
– Creative and Intellectual enrichment of the public
– Progress of Scientific and useful Arts (literary, artistic,
musical, dramatic, cinematographic films, sound
recordings and now performances & broadcasting)
– Copyleft, Open Source and Creative Commons –
emerging notions of open access
• Bundle of rights – right to make copies;

communicate to the public; make adaptations
and allow translations
Legal Framework
• Registration – not compulsory, but useful
when copyright is infringed - territorial
• Indian Copyright Act, 1957
• International recognition:
– Berne Convention (1886) and
– Universal Copyright Convention (1952)
“Fair Use” Criteria
• Purpose and Character of use
• The nature of the Copyrighted work
• Amount and substantiality of use
• The effect on potential market or value

Some instances of Fair use
• For Teaching, Research or Private Study
• For news, review, or critiques
• For mainly Charitable and non-commercial

performances
• For benefit of differently-abled

CYBER LAWS,
E-GOVERNANCE &
DATA PROTECTION
Geography, is History!
• Contracts & Commerce in Cyberspace and
in Electronic format
• Detection, Investigation and Prosecution

of Cyber Crimes across the globe
• Re-appreciation of legal principles –

jurisdiction, privacy, IPRs, evidence, etc.
IT Law – Objects & Concerns
• To provide privacy and guarantee security in
public and unregulated space
• To authenticate and authorize transactions

undertaken across several countries
• To keep the legal framework in pace with the

changing forms of technology
Online Piracy
• RIAA v. Charter Comm. (2005 USCoA)
– P2P; MP3 technology enabled piracy
– 2.6 billion music works in a month!
– “John/Jane Doe” suits and summons
– Disclosure of subscriber details
– “Safe harbour” (DMCA, 2000) for ISPs = mere transmit and

route; “system caching” temporary storage; user determined
process; mere provision of links – prompt action upon
notification
Online Piracy …
• “Contributory liability” only if:
– Reasonable knowledge of infringement
– Expected knowledge of storage on site
– Fails to prevent “viral distribution”
• “Due diligence” given prominence in

Indian Law – Intermediaries’ liability
Liability of “Intermediaries”
• Service Providers are exempted from liability if
lack of knowledge despite “due diligence”
• Service Providers can be ordered to preserve

and retain information
– Full cooperation is legally mandated
• Comprehensive Search & Seizure Powers given

to the Police
Legal Framework
• Information Technology Act, 2000
– Latest Amendments
– Procedural and Evidentiary
• UNCITRAL Model Law on E-Commerce, 1996
• Convention on Cyber Crimes = EU+ Members
• US Acts and EU Directives

E-Governance
• Recognizes electronic records and
signatures as valid forms
• Government can accept, issue, create,

retain and preserve records electronically
– though not mandatorily
• Mandate of the Right to Information Act

Data Protection
• DATA PROTECTION & PRIVACY
– Compensatory remedy = up to 5 Crores
– Applicable to “body corporate” (commercial or professional

activities);
– Reasonable security procedures;
– Protection of “sensitive personal data/ information”
– Disclosure of confidential information penalized
– Violation of Privacy made punishable – crime as per the IPC

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Technology and the Law

Prof. Anil B. Suraj

• To appreciate the importance of and the

• To understand the prevalent legal

• Social benefits – enriches Public Domain

• IPRs are legally monopolistic – need to be

• Copyrights – Copyright Act, 1957

• Trade Marks – Trade Marks Act, 1999

• Industrial Designs – Designs Act, 2000

• Geographical Indications – Geographical

• Plant varieties – Protection of Plant Varieties

• Trade Secrets – Contractual – no particular

• IPRs and Global recognition

• 20 year period of monopoly granted for

• Effect of Patents – only territorial

• The Patents Rules, 2003

• Registering Authority – Controller General of

• Registration – no guarantee of validity

• No grant of “international patents” – procedural

• Firms/Corporations – cannot be inventors

• Bundle of rights – right to make copies;

• Indian Copyright Act, 1957

• The nature of the Copyrighted work

• Amount and substantiality of use

• The effect on potential market or value

• For news, review, or critiques

• For mainly Charitable and non-commercial

• For benefit of differently-abled

• Detection, Investigation and Prosecution

• Re-appreciation of legal principles –

• To authenticate and authorize transactions

• To keep the legal framework in pace with the

– 2.6 billion music works in a month!

– “John/Jane Doe” suits and summons

– Disclosure of subscriber details

– “Safe harbour” (DMCA, 2000) for ISPs = mere transmit and

• “Due diligence” given prominence in

• Service Providers can be ordered to preserve

• Comprehensive Search & Seizure Powers given

• UNCITRAL Model Law on E-Commerce, 1996

• Convention on Cyber Crimes = EU+ Members

• US Acts and EU Directives

• Government can accept, issue, create,

• Mandate of the Right to Information Act

– Applicable to “body corporate” (commercial or professional

– Reasonable security procedures;

– Protection of “sensitive personal data/ information”

– Disclosure of confidential information penalized

– Violation of Privacy made punishable – crime as per the IPC

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