AIIT

Amity Institute Of
Information Technology
BCA/[Link], Semester 6
Cyber Security & Cyber Laws
Dr Nidhi
AIIT, Amity University, Noida U.P.
1
 AIIT

Module 3
Cyber Law & IT Act
 Cyber Law AIIT

• It refers to all legal and regulatory aspects

of internet and the world wide web.

• Cyber space is governed by a system of

law and regulations called cyber law.
 AIIT

DEFINITION OF Cyber Law

Cyber law (also referred to as cyberlaw) is a term used
to describe the legal issues related to use of
communications technology, particularly cyberspace;,
i.e. the Internet. It is less a distinct field of law in the way
that property or contract are as it is an intersection of
many legal fields, including intellectual property, privacy,
freedom of expression, and jurisdiction. In essence,
cyber law is an attempt to integrate the challenges
presented by human activity on the Internet with legacy
system of laws applicable to the physical world.

[Link]
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NEED FOR CYBER LAWS

• TACKLING CYBER
CRIMES

• INTELLECTUAL
PROPERTY RIGHTS
AND COPYRIGHTS
PROTECTION ACT
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AREAS COVERED UNDER

CYBER LAW
• Copyright law
• Software Trademark law
• Patent law
• Data Protection
• and Privacy Laws
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INFORMATION TECHNOLOGY ACT,

2000:

• 12th nation in the world to enact a Cyber law.

• Came into existence on October 17, 2000

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Jurisdiction and Sovereignty

• Issues of jurisdiction and sovereignty have
quickly come to the fore in the era of the
Internet.
• The Internet does not tend to make
geographical and jurisdictional boundaries
clear, but Internet users remain in physical
jurisdictions and are subject to laws
independent of their presence on the
Internet.
 AIIT

Jurisdiction and Sovereignty

• As such, a single transaction may involve the laws of at
least three jurisdictions:
• 1) the laws of the state/nation in which the user resides,
• 2) the laws of the state/nation that apply where the
server hosting the transaction is located, and
• 3) the laws of the state/nation which apply to the person
or business with whom the transaction takes place.
So a user in one of the United States conducting a
transaction with another user in Britain through a server
in Canada could theoretically be subject to the laws of all
three countries as they relate to the transaction at hand.
 AIIT

Jurisdiction and Sovereignty

• This is particularly problematic as the medium of the Internet does
not explicitly recognize sovereignty and territorial limitations. There
is no uniform, international jurisdictional law of universal application,
and such questions are generally a matter of conflict of laws.
• Another major problem of cyber law lies in whether to treat the
Internet as if it were physical space (and thus subject to a given
jurisdiction's laws) or to act as if the Internet is a world unto itself
(and therefore free of such restraints). Those who favor the latter
view often feel that government should leave the Internet community
to self-regulate. JohN Perry Barlow, for example, has addressed the
governments of the world and stated, "Where there are real
conflicts, where there are wrongs, we will identify them and address
them by our means. We are forming our own Social Contract . This
governance will arise according to the conditions of our world, not
yours.
 AIIT

IT ACT PROVISIONS
• Email would now be a valid and legal form of
communication in our country that can be duly produced
and approved in a court of law.

• Companies shall now be able to carry out electronic

commerce using the legal infrastructure provided by the
Act.

• Digital signatures have been given legal validity and

sanction in the Act.
 AIIT

IT ACT PROVISIONS
• The Act now allows Government to
issue notification on the web thus
heralding e-governance

• statutory remedy in case if anyone

breaks into companies computer
systems or network and causes
damages or copies data
 AIIT

SHORT COMINGS OF INFORMATION

TECHNOLOGY ACT, 2000:
• No protection for Domain Names.
• The act is not applicable on the
IPR, Trademarks, Copyrights and
Patents.
• No right to insist on Electronic
Filling
• Regulations of Payments
 AIIT

OFFENCES AND LAWS IN

CYBER SPACE
• TAMPERING WITH
COMPUTER DOCUMENTS
• HACKING WITH
COMPUTER SYSTEM
• PUBLISHING OBSCENE
MATERIAL ON INTERNET
• BREACHING OF
CONFIDENTIALITY AND
PRIVACY
 AIIT

CYBER LAWS AMENDMENTS

• INDIAN PENAL CODE,1860

• INDIAN EVIDENCE ACT,1872

• BANKER’S BOOK EVIDENCE ACT,1891

• GENERAL CLAUSES ACT,1897

 GREY AREAS AIIT

• Conflict of Jurisdiction
• Domain names Intellectual Property
• Rights Various kinds of cyber crimes are
not defined
• Privacy and content regulation
• Parameters for its implementation
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OFFENCES
• Section 65: Source Code
imprisonment up to three years and / or fine up to
Rs. 2 lakh
• Section 66: Hacking imprisonment up to three
years and / or fine up to Rs. 2 lakh
• Section 69: Decryption of information Person in
charge of the computer resource fails to facilitate
decryption of the information Punishment up to 7
years
 OFFENCES AIIT

• Section 67: Pornography

On first conviction imprisonment up to five years and fine up to
Rs. 1 lakh
On subsequent conviction
imprisonment up to ten years and fine up to Rs. 2 lakh
Cognizable
Section 70: Protected System
Imprisonment up to 10 years and fine Cognizable
 AIIT

Computer Related Crimes under IPC and

Special Laws
• Sending threatening messages by email -Sec 503 IPC
• Sending defamatory messages by email-Sec 499, 500 IPC
• Forgery of electronic records-Sec 470 , 471 IPC
• A Bogus websites, cyber frauds- Sec 420 IPC
• Email spoofing-Sec 416, 417, 463 IPC
• Online sale of Drugs-NDPS Act
• Web - Jacking -Sec. 383 IPC
• Online sale of Arms- Arms Act

[Link]
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Enforcement Of Intellectual
Property Rights
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Custom Act, 1962 & IPR Enforcement Rules, 2007

Apart from the various remedies provided under
the IP Laws in India, one of the most efficient
ways to protect and enforce intellectual property
rights is Act, 1962 It prohibits import of goods that
infringthrough Custom e Intellectual Property at
the Custom Borders thereby restricting the entry
of the goods infringing Intellectual Property Rights.
/
 AIIT

What is Protected

IPR Rules 2007 permits a Right Holder to

protect the following different types of
Intellectual property- Trademark Patent
Design Copyright Geographical Indication

• /
 Who is Protected AIIT

RIGHT HOLDER, means

-a Natural Person or a Legal Entity, which is the
owner of the protected IP under the Indian IP
Laws
-its Successors-in-Title
-its Duly Authorized Exclusive Licensee
-Any other Individual, Corporation or Association
authorized by the Right Holder
 AIIT

What is Protected
Goods which are made, reproduced,
put into circulation or otherwise used
in breach of the intellectual property
laws in India or outside India and
without the consent of the right
holder or a person duly authorized to
do so by the right holder.
 AIIT

What is Protected (Trademark)

a. Goods applying False
Trademark
b. Goods applying False Trade
Name
c. Goods applying False Trade
d. Description Anything that
amounts to infringement of a
trademark
 AIIT

What is Protected (Trademark)

a. Goods applying False
Trademark b. Goods applying
False Trade Name c. Goods
applying False Trade
d. Description Anything that
amounts to infringement of a
trademark
 AIIT

The Laws For Intellectual

Property Protection
• Copyright Act 1987
• Trademarks Act 1976
• Patent Act 1983
• Industrial Design Act 1996
• Geographical Indications Act 2000
• Law of Tort
• -passing-off
• Confidential information
 AIIT

Protection for Copyright

• Protection given by law for a term of
years to the composer, author etc… to
make copies of their work..
• Work include literary, artistic,
musical,films, sound
recordings,broadcasts.
• Commercial and moral rights.
• No registration provision.
 AIIT

Protection for trade marks

• Commercial exploitation of a product
• To identify the product, giving it a name
• “mark” includes a device, brand,
heading, label, ticket, name,
signature,word, letter, numeral or any
combination.
• Does not include sound or smell
 AIIT

Trade marks (cont.)

• Can either be registered or not
registered
• Advantages of registered trade marks
• Application can be made for goods and
services
• Perform certain function such as
indication of quality, identifying a trade
connection
 AIIT

Choosing the correct mark

• Compare the trade mark “Dove” to using
the mark “crows”.
• Would the “Frog restaurant ” be
acceptable?
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Protection for patent

• Basic idea of granting a patent
• “ the applicant applied to the government
for the right of patent and in return for
the monopoly given he must disclose
everything about the invention in the
patent document” ( the description)
• Duration 20 years.
 AIIT

Patent (cont.)
• Patent for invention
• Patent can be applied for a product or a
process.
• Patentable invention must be
new,involves an inventive step and
industrially applicable
• Priority date- first to file
 AIIT

The role of patent

• Innovation
• Anticipating the changes that is coming
• - Kodak
• - Polaroid
• - Haeir
 AIIT

What is Copyright?
 AIIT

Objective of Copyright?
• “The exclusive right given by law for
a certain term of years to an author,
composer etc. (or his assignee) to
print, publish and sell copies of his
original work”
(Oxford English Dictionary)
 Why Copyright? AIIT

• Fair Play: Reward creative efforts. “Thou

shall not steal”

• Exclusive rights for limited

time → Negative right:
prevent copying/reproduction

• Copyright is necessary →
encourage dissemination of
copyrighted works = public interest
 England & Wales AIIT

• Indian copyright law similar to

England & Wales. First Copyright Act
in England (and the world)

• 1709 → Statute of Anne.

 United States AIIT

• First Act in 1790: did not protect

foreign authors
• Indigenous American literature
suffered
• Today: Copyright Act 1976 one
of the major copyright laws in
the world
 AIIT

Indian Perspectives

The Copyright Act 1957

 Copyright in India AIIT

• First Act in 1914, followed by the

Copyright Act 1957.

• 1957 Act: adopted many English

provisions, introduced new ideas and
concepts.
 Copyright Act 1957 – Main AIIT

Features

• Valid from 21 January 1958

• Created Copyright Office and

Copyright Board

• Introduced civil and criminal

remedies against infringement
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Copyright Act 1957 – Main

Features (II)
• Performing rights societies’ rights
(for instance, music royalties)

• Definition of categories in which

copyright actually subsists

• International copyright

• Definition of infringement
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Copyright (Amendment) Act 1983

Objectives
and 1984
• Berne and Universal Copyright Conventions
 grant of compulsory licences by
developing
countries, publication by
deceased authors
• 1984 Act: discouraging
and preventing widespread video
piracy.
 Copyright (Amendment) AIIT

Act 1992
• Defined ambit of the Copyright Board’s
powers

• Introducing special
rights for performers

• Assignment and licences of copyright

• Rights of copyright owners
 Term of Copyright AIIT

• Depends on nature of work/owner of

copyright and whether the work has
been published

• Most works: 60 years

• Broadcast Reproduction: 25 years

 AIIT

The Nature of
Copyright
About Fixation, Labour, Skill and
Capital
 AIIT

The Nature of Copyright

• Statute-based, no registration necessary

• Copyright = intellectual property

• Combines different rights (literary works:

the right to reproduce in hardback and
paperback editions, the right of
translation adaptation)
 AIIT

Labour, Skill and Capital

• “It is the product of the labour,
skill and capital of one man
which must not be appropriated
by another.” (- per Lord Atkinson,
Macmillan v Cooper AIR 1924 PC 75)
 AIIT

It‘s All About the Idea: Or isn‘t

• Copyright in form orIt?
expression, not in
idea: “There is nothing in the notion of
copyright to prevent a second person from
producing an
identical result...”
(Gregory Committee
Report, 1952, para 9)

• Copyright only in material form 

principle of fixation
 What Copyright AIIT

Protects
• Original Literary, Dramatic, Musical
and Artistic Works
• Cinematograph Films
• Sound Recordings
 Literary Works AIIT

• Novels, poems, short stories

• Books on any subject
• Computer programmes,
tables, computer
databases
• Song lyrics
 Computer Software AIIT

Includes
• Programme Manuals
• Punched Cards
• Magnetic Tapes/Discs
• Computer printouts
• Computer programmes
 AIIT

Transfer of copyright
ownership
 AIIT

WRAP UP POINTS: JOINT

WORKS
• A joint work is defined in section 101 as
a “work prepared by two or more authors
with the intention that their contributions
be merged into inseparable or
interdependent parts of a unitary whole”
 AIIT

WRAP-UP: JOINT AUTHORS

• Joint authors have 2 rights and 1 obligation
• Each joint author has the right to use or
license the work as he or she wishes
• Each has an equal and undivided interest
in the work
• Each has the obligation to account to the
other joint author for 1/2 profits that are
made if the work is licensed
 WRAP-UP: INTENTION AIIT

TEST FOR JOINT WORKS

• If there is no written agreement between the
authors, there is a 2 pronged test to determine
whether there is joint ownership (Childress,
Thompson)
• A P trying to establish co-ownership must
establish:
• 1. Each putative co-author made independently
copyrightable contributions to work
• 2. Each putative co-author fully intended to be a
co-author
 AIIT

MORE ON INTENTION TEST

• The joint work intention test is not just

SUBJECTIVE. You must look at the
relationship -- e.g. how the collaborator
regarded herself in terms of billing and
credit, decision making, and right to
enter into contract
 AIIT

TRANSFER OF COPYRIGHT
OWNERSHIP
• COPYRIGHT IS A BUNDLE OF RIGHTS
- Under the 1976 Copyright Act, the
copyright owner can transfer any of these
rights separately
• This principle of divisibility is set out in s.
201(d)(2) (note - this was a change in the
law; previous law required only one
copyright owner at all times - anyone else
was a licensee)
 DIVISIBILITY: Section 201(d) AIIT

(2)
• Any of the exclusive rights comprised in
a copyright, including any subdivision of
any of the rights specified in section 106,
may be transferred as provided in clause
(1) and owned separately. The owner of
any particular exclusive right is entitled,
to the extent of that right, all of the
protection and remedies accorded to the
copyright owner by this title.
 HOW DO YOU TRANSFER AIIT

COPYRIGHT INTERESTS?
• Section 201(d)(1): The ownership of a copyright
may be transferred in whole or in part by any
means of conveyance or by operation of law and
may be bequeathed by will or pass as personal
property by the applicable laws of intestate
succession
• Jonathan Larson’s copyrights were inherited after
his death.
• See also definition of “transfer of copyright
ownership” in section 101
 AIIT

SECTION 101: TRANSFER

• A transfer of copyright ownership is an
assignment, mortgage, exclusive
license, or any other conveyance,
alienation, or hypothecation of copyright
or of any of the other exclusive rights
comprised in a copyright whether or not
it is limited in time or place of effect, but
not including a nonexclusive license.
 AIIT

WRITING REQUIREMENTS FOR

TRANSFERS OF COPYRIGHT
OWNERSHIP?
• Does the Copyright Act of 1976 require
transfers of copyright ownership to be in
writing?
 AIIT

204: Execution of Transfers of

Copyright Ownership
• (a) A transfer of copyright ownership,
other than by operation of law, is not valid
unless an instrument of conveyance, or a
note or memorandum of the transfer, is in
writing and signed by the owner of the
rights conveyed or such owner’s duly
authorized agent.
• Do you have to notarize such transfers?
See section 204(b).
 SUMMARY: WRITING AIIT

REQUIREMENTS FOR
EXCLUSIVE LICENSES
• Section 204 requires either : “note or
memorandum of the transfer”
• or transfer by operation of law
• Why require a writing?
 SUMMARY: WRITING AIIT

REQUIREMENTS FOR
EXCLUSIVE LICENSES
• Section 204 requires either : “note or
memorandum of the transfer”
• or transfer by operation of law
• Why require a writing? See Effects v. Cohen -
idea is to ensure that no one will inadvertently
give away copyright; also require clarity about
what rights are being given away and at what
price. Enhance predictability and certainty.
 AIIT

TRANSFER BY OPERATION
OF LAW
• COMPARE: CB p. 335
• CA In re Marriage of Susan M. &
Frederick L. Worth (1987) WITH
• LA Rodrigue v. Rodrigue (2000)
• [CAN state community property laws
step in to enforce sharing of
copyright?]
 HYPOTHETICAL AIIT

• Novelist Neil wants to give Thea

Translator the exclusive right to make a
translation into Italian. Neil tells Thea he
is giving her an exclusive license. Is that
license valid? Why or why not?
• What are the benefits of an exclusive
license as opposed to a nonexclusive
license - see BMI v. CBS (S.D.N.Y.
1983) (p. 299), s. 501(b)
 HYPOTHETICAL AIIT

• What are the benefits of an exclusive license

as opposed to a nonexclusive license - see
BMI v. CBS (S.D.N.Y. 1983) (p. 299), s. 501(b)
• An exclusive licensee has the right to bring an
action for copyright infringement; a nonexclusive
licensee does not.
• BMI had no standing to sue as it was a
nonexclusive licensee. What problem does this
create for BMI?
 BMI v. CBS (S.D.N.Y. 1976) AIIT

• Court did recognize that its decision

created a practical problem for BMI - it
might be hard to join a large number of
music publishers if lots of different songs
were allegedly infringed. So court
suggested that BMI might seek to have
publishers declared a plaintiff class
under Rule 23 of the FRCP.
 AIIT

EFFECTS V. COHEN (9th Cir.

1990)
• What is the Stuff and what food does it
resemble?
• What was the copyrighted work
created by Effects Associates and who
commissioned it?
 AIIT

EFFECTS V. COHEN (9th Cir.

• Did Larry Cohen and
1990) Effects enter into a
written contract?
• On what basis did
Cohen claim copyright
ownership?
• Could it be a work
made for hire?
• An exclusive license?
• A nonexclusive
license?
 AIIT

“Moviemakers do lunch, not

contracts”
• Section 204’s writing requirement DOES
apply to this situation (Hollywood
executives are not exempted despite
custom of the trade argument)
• Section 204 does not apply to
nonexclusive licenses. Court implies a
nonexclusive license on the basis that
contribution was not of minimal value
since Cohen paid almost $56,000 for it.
 Did Effects have any AIIT

recourse?
• Effects could bring a suit for breach of
contract in state court
• Effects could also assign or license its
remaining rights in the special effects
footage (though perhaps not worth much
given the movie’s quality)
• All Effects gave up was one little twig of its
bundle of copyright rights: the right to sue
Cohen for copyright infringement
 You Be the Judge AIIT

• Is Effects a good decision?

• Why or why not?
 Recordation System AIIT

• What is recordation?
 Recordation System AIIT

• What is recordation? It is a voluntary

system permitting transfers of copyright
ownership to be recorded with the
Copyright Office.
• How do you record a transfer?
 AIIT

Recording a Transfer
• You file EITHER the original transfer OR
(more often) a copy that is accompanied
by a sworn certification that it is a true
copy of the original transfer
• You PAY - fee is currently $50 for
document containing no more than 1
title, $15 for additional titles (per group of
10 titles)
 AIIT

Recordation as constructive
notice (section 205)
• Recordation operates as constructive
notice (so long 2 conditions are met:
work is specifically identified and there is
a registration of copyright for the work) -
205(c)
• Recordation gives transferee priority
over later transfers - 205(d)
 AIIT

Priority Between Conflicting

Transfers
• First transfer prevails if recorded within
one month after execution in US or
within 2 months after execution after US
OR at any time before recordation of
second transfer
• OTHERWISE LATER TRANSFER
PREVAILS
 AIIT

Priority between conflicting transfer

and nonexclusive license
• Section 205(e) : Nonexclusive license,
whether recorded or not, prevails over
conflicting transfer of copyright ownership IF
license evidenced by written instrument
signed by copyright owner or authorized
agent AND license taken before transfer
executed OR license taken in good faith
before recordation of transfer and without
notice of it.
 AIIT

Copyright in digital
media
 AIIT

Digital Copyright in age of Internet

The ease of copying and the possibility of reproduction

raise the Question:

„Can Copyright adjust to the Internet or

should the Internet adjust to the Copyright ?“
 Digital Copyright AIIT

Difference between Patent and IP

Subject Mind

Invention Idea
Transforming
Patent Intellectual Property
• It regulates the reproducion of • It regulates the copy of
material works Intellectual works, like
• It must be granted music, literature and films,
• computer programs and
It lasts 20 Years than it has to
paintings
be extended
• Problem: an intensive patent- • It is valid at once
research. Existing Patents may • It lasts 70 Years after death
not be infringed. of the author (Ger)
• independent Development
is possible, so there is no
risk of infringement
 Digital Copyright AIIT
What is Copyright and why Copyright?

What is Copyright?
• A form of Intellectual Property for a defined period of time.
• „fixed in tangible form“

Why Copyright?
It secures his holder the exclusive right
• to produce copies,
• to sell these copies,
• to import or export the work.
• to perform or to display the work public.
• to create derivate works.
• to sell these rights to others.
Producers get the control of the distribution (copy of the work) for extended
time-limit.
 Digital Copyright AIIT
Why was it created?

• The creator of a new work as well as the public are able to get all the
benefits of the creation of a new original work

• to protect the particular expression in a work

• no protection of the underlying facts, systems or methods
Example: Mickey Mouse cartoon doesn´t prevent others to create a talking
mouse.
Prohibits others the right to distribute Disney‘s Cartoon
Prohibits to create derivate works closely copying that particular
talking mouse.

• Both, copyright and patent, grant certain „exclusive rights“.

 Digital Copyright AIIT
Current Copyright exceptions

• „First sale doctrine“

limits the control of holders about copies of a work

• „Fair use doctrine“

limits the monopol of copyright-holders for users of education, the use of
private study and the satire.

• „public domain“
When copyright expires, the work enters in public domain.
Anyone can use that work for any purpose.
 Digital Copyright AIIT
Current Copyright and the Digital Age

Fair use and First sale

• The content industry fears:

to lose the control over they copyrighted content. This threatend their
profit.

• The content industry fears:

Fair use as an excuse for individuals who copy other works.

• The entertainment industry fears:

The first sale will permit their first buyer to redistribute a work for free. The
authorship incentives will be destroyed.
Digital Copyright AIIT
 What is Infringement AIIT

• Patents grant their owners the right to exclude others

from practicing the claimed invention.
• Unauthorized practice is infringement.
Direct infringement
• Making the invention
• Using the invention
• Selling the invention
• Offering the invention for sale
• Importing the invention

Indirect infringement
• Inducing infringement
• Contributing to infringement
 Issued Patent AIIT

• Right to Exclude

– NOT an affirmative right

– A ticket to the courthouse

 AIIT

Defenses for Infringement

• How is infringement determined?

– Determine the scope of the claim(s)

– Compare the elements of the claim to the
composition or method accused of
infringement using the “all elements” rule:
every element required by the claim must
be present in the accused composition or
method either literally or under Doctrine of
Equivalents
 AIIT

Elements
recited Cheese

Edible Salad

2 Slices of Bread

Meat Product
 Literal Infringement Analysis
AIIT

The Two Cheese Edible Meat Literal

Claimed Slices of Salad Product Infringeme
Burger nt?
Bread

#1 Yes

#2 No
 Non-literal Infringement Analysis AIIT

The 2 Slices Chees Edible Meat Infringement

Claimed Of e Salad Product under the
Burger Bread Doctrine of
Equivalents?

#2 Yes, if cheese-
flavored
Cheese dressing is the
Flavore legal
d equivalent to
Dressin
cheese.
g
 Defenses AIIT

• Invalidity
• Unenforceability (inequitable conduct)
• Improper inventorship
 Invalidity AIIT

• The claimed subject matter was not new

• The claimed subject matter was obvious
• The specification is not a sufficient
written description
• The specification does not enable others
to practice the invention claimed
 Inequitable Conduct AIIT

• Each person associated with prosecuting an application in the USPTO

has a duty of candor to the Office
– Must provide information that would be material to patentability (if in doubt,
disclose!)
– Must not provide false information
• Often raised as a defense to charge of infringement
• Requires both intent to deceive PTO and materiality (relevance) of the
information
• If duty of candor is violated, entire patent is unenforceable

• Practical impact: Check the Invention Disclosure Statement and make

sure all of the statements in the application and those made during its
prosecution are accurate.
 Remedies AIIT

• Patent Act provides for both injunctive relief

for patent infringement and damages; no
less than a reasonable royalty (if cannot
prove lost profits)
• If product not marked, no damages until
actual notice of infringement given.
• Enhanced damages (up to 3x) and
attorney’s fees may be awarded in
exceptional cases