IPR & Cyber Laws (April - 2015) [CBSGS - Paper Solution]

Book Code: TYBSCIT-IPR-003
May – 2019 #ISSUE – 12
Mumbai University
IPR & CYBER
LAWS

1
© Mumbai B.Sc.IT Study Kamal T.
IPR and Cyber Laws
Paper Solution
 University: University of Mumbai
 Year: April – 2015
 Course: B.Sc.IT (Information Technology)
 Semester: VI
 Subject: IPR and Cyber Laws
 Syllabus: CBSGS – 75:25 Pattern
BY
Kamal Thakur
B.Sc.IT (Mumbai University)
Web Designer | Blogger | YouTuber | E-Books Designer & Maker

2
Contact Me @
Email ID:
kamalthakurbscit@gmail.com
WhatsApp No.:
+91 – 8454975016
Social Network @
YouTube
http://bit.do/KamalT
Official Site
http://mumbaibscitstudy.com
Facebook
https://facebook.com/mumbaibscitstudy
Instagram
https://instagram.com/mumbaibscitstudy
Twitter
https://twitter.com/kamaltuniverse
Pinterest
https://in.pinterest.com/kamaltuniverse

3
IPR AND CYBER LAWS
(PAPER SOLUTION)
APRIL – 2015 | CBSGS – 75:25 PATTERN
BY
KAMAL THAKUR

4
Time: 2 ½ Hours Total Marks: 75
NOTE:
(1)All Question are Compulsory.
(2)Make Suitable Assumptions Wherever Necessary And State The Assumptions Made.
(3)Answer To The Same Question Must Be Written Together.
(4)Number To The Right Indicates Marks.
(5)Draw Neat Labeled Diagrams Wherever Necessary.
Q.1. Attempt Any Two Questions: (10 Marks) ..................................... 6
......................................................6
...................................6
................................................7
........................................8
Q.2. Attempt Any Two Questions: (10 Marks) ..................................... 9
...9
....................9
.........................11
................................................................12
Q.3. Attempt Any Two Questions: (10 Marks) ................................... 14
.....................14
......................................................14
...................................15
........................16
......................................................16
......................................................................................................17
.........................................................17
...........................................18
..................................................................18

5
...........................................................................................................................................19
..........................................................................................20
...............21
..............................................................................................................22
..............................................................23
............................................................................................................................24
25
Q.7. Attempt Any Three Questions: (15 Marks)................................ 27
.............................................27
..................................27
..............................28
...............................28
.................29
...........................29

6
Q.1. Attempt Any Two Questions: (10 Marks)
Solution:
Patent:
• Patent means a grant of some privilege, property or authority made by the Government or
the Sovereign of the country to one or more individuals.
• The instrument by which such grant is made is known as "patent".
Objectives of the Indian Patent Act 1970:
In order for the Indian Patent Act to be successful following are the objectives:
(1) Import of various product should be excluded from the definition of invention.
(2) The Government of India (GOI) should give certain privileges and incentives to encourage
inventors to invent new products.
(3) All inventors should not disclose trade secrets about their inventions.
(4) The inventors are encouraged to invent new and useful in case of manufacturing products.
(5) The main purpose of an invention is not only to protect its owners but also to encourage
true and fair competition in the field of technology.
Solution:
Method of Drafting Patent Specification:
The specification, which is also called the disclosure, is a written description of an invention. The
patent specification is drafted both to satisfy the written requirements for patentability, as well
as to define the scope of the claims. The layout of a specification varies from place to place.
Drafting method through a layout and it contains the following elements:
1. Title:
The title describes the essence of the invention in a few words. The title: must relate to and
broadly describe the invention (e.g. “A waterproof zip-fastener") should not include acronyms,
statements of quality, trademarks, fancy names, the word “patent” or personal names.
2. Description:
The description makes up the majority of the specification. It explains the invention and how to
put it into practice. The description may include the following headings:
• Technical Field: The description usually begins with a brief statement identifying the
technical field of the invention. For example, "The invention relates to … and is suitable for
[activity or purpose]."
• Background of the invention (optional): We can include some background information
describing what is known (i.e. the most pertinent prior art), mention if our invention
attempts to solve any particular problems and include objectives for the invention.
• Statement of Invention: This section summarizes the essential and preferred features of the
invention. It sets out the scope of the invention and should be equivalent to the main claims

7
of your specification or, in the case of a provisional specification, claims you intend using for
any subsequent complete specification.
• Detailed description of the invention: The final part of the description describes the
technical aspects of the invention in detail, explaining how to construct and use examples
of the invention or how the inventive process can be carried out. Graphs, flowcharts, tables,
experimental data and drawings can be included.
3. Claims:
Patent claims define the protective boundaries of the invention (the "scope of monopoly").
Claims must be clear, supported by the description, and list all of the essential features of the
invention.
Note:
• Complete specifications must end with at least one claim.
• Each claim should be written as one sentence.
• A claim can be independent or dependent on an earlier claim(s).
• Generally, claims begin with the broadest claim and progress to narrower claims.
• Claims should not contain laudatory statements like "it is cheaper" OR "it is the best way of
doing it that I have seen".
• The claims are usually presented on a separate page or pages, under the heading "What
I/We Claim Is:". The page numbering follows on from the description.
Solution:
Trademark:
• A consumer is duped if he buys a commodity presuming it to have originated from a certain
identified source when actually it is not, and later he finds the commodity substandard.
• In the process, the reputation of trader suffers.
• The interests of both the consumer and the trader can be saved if some definite symbol
which marks out the origin of goods from a definite trade source is attached with the goods
emanating from such source.
• Such a symbol is called a trademark.
Functions Of Trademark:
A trade mark serves the purpose of identifying the source of origin of goods. Trademark
performs the following four functions:
• It identifies the product and its origin. For example, the trade mark ‘Brooke Bond’ identifies
tea originating from the Company manufacturing tea and marketing it under that mark.
• It guarantees its quality. The quality of tea sold in the packs marked Brooke Bond Tea would
be similar but different from tea labelled with mark Taj Mahal.
• It advertises the product. The trade mark represents the product. The trade mark ‘Sony’ is
associated with electronic items. The trade mark SONY rings bell of particular quality of
particular class of goods. It thus advertise the product while distinguishing it from products
of Sony’s competitors.

8
• It creates an image of the product in the minds of the public, particularly comes or the
prospective consumers of such goods. The mark ‘M’ which stands for the food items
originating from the American fast food chain McDonalds creates an image and reputation
for food items offered by it for sale in the market.
Solution:
Copyright:
• Copyright is a unique kind of Intellectual Property.
• The right which a person acquires in a work, which is the result of his Intellectual Labour, is
called his Copyright.
• The primary function of a Copyright Law is to protect the fruits of a man’s work, Labour, skill
or test from being taken away by other people.
Characteristics Of Copyright:
Creation of a Statute:
Copyright is creation of a specific statute under the present law. There is no such things as
common law copyright. No copyright can exist in any work except as provided in the section 16
of the Act.
Some Form of Intellectual Property:
A copyright is a form of intellectual property since the product over which the right is granted,
e.g., a literary work, is the result of utilization and investment of intellect.
Monopoly Right:
Copyright is a monopoly right restraining the others from exercising that right which has been
conferred on the owner of copyright under the provisions of the Act.
Negative Right:
Copyright is a negative right meaning thereby that it is prohibitory in nature. It is a right to
prevent others from copying or reproducing the work.
Object of Copyright:
The object of copyright law is to encourage authors, composers and artists to create original
works by rewarding them with the exclusive right for a specified period to reproduce the works
for publishing and selling them to public. The foundation of Indian Copyright Law, which is of
English origin and provenance has a moral basis, and is based on the Eighth Commandment,
“Thou Shalt not Steal” (as held by the Supreme Court in R.G. Anand Case 1978).
Multiple Rights:
Copyright is not a single right. It consists of a bundle of different rights in the same work. For
instance, in case of a literary work copyright comprises the right of reproduction in hard back
and paperback editions, the right of serial publication in newspapers and magazines, the right

9
of dramatic and cinematographic versions, the right of translation, adaptation, abridgement and
the right of public performance.
Neighboring Rights:
Copyright consists not merely of the right to reproduction. It also consists of the right to works
derived from the original works; rights like the right of public performance, the recording right
and the broadcasting right which are as important or even more than the right of reproduction.
Such related rights are termed "neighboring rights".
Solution:
Copyright Law and Computer Software:
• In India, the Intellectual Property Rights (IPR) of computer software is covered under the
Copyright Law. Accordingly, the copyright of computer software is protect
• Under the provisions of Indian Copyright Act 1957.
• Major changes to Indian Copyright Law were introduced in 1994 and came into effect from
10 May 1995. These changes or amendments made the Indian Copyright law one of the
toughest in the world.
Its Protection:
• Since most software is easy to duplicate, and the copy is usually as good as original, the
Copyright Act was needed.
• Some of the key aspects of the law are:
• According to section 14 of this Act, it is illegal to make or distribute copies of copyrighted
software without proper or specific authorization.
• The violator can be tried under both civil and criminal law.
• A civil and criminal action may be instituted for injunction, actual damages (including
violator's profits) or statutory damages per infringement etc.
• Heavy punishment and fines for infringement of software copyright.
• Section 63 B stipulates a minimum jail term of 7 days, which can be extended up to 3 years.
Solution:
Semiconductor Chip Protection Act (SCPA):
• The Semiconductor Chip Protection Act of 1984 was an innovative solution to this new
problem of technology-based industry.
• While some copyright principles underlie the law, as do some attributes of patent law, the
Act was uniquely adapted to semiconductor mask works, in order to achieve appropriate
protection for original designs while meeting the competitive needs of the industry and
serving the public interest.

10
How SCPA Operates?
• Although the U.S. SCPA is codified in title 17 (copyrights), the SCPA is not a copyright or
patent law.
• Rather, it is a law resembling a utility model law.
• It has some aspects of copyright law, some aspects of patent law, and in some ways it is
completely different from either.
• In general, the chip topography laws of other nations are also utility model laws.
• Nevertheless, copyright and patent case law illuminate many aspects of the SCPA and its
interpretation.
1. Acquisition Of Protection By Registration:
• Chip protection is acquired under the SCPA by filing with the U.S. Copyright Office an
application for "mask work" registration under the SCPA, together with a filing fee.
• The application must be accompanied by identifying material, such as pictorial
representations of the IC layers—so that, in the event of infringement litigation, it can be
determined what the registration covers.
• Protection continues for ten years from the date of registration.
2. Mask Works:
• The SCPA repeatedly refers to "mask works." This term is a remains of the original form of
the bill that became the SCPA and was passed in the Senate as an amendment to the
Copyright Act.
• The term mask work is parallel to and consistent with the terminology of the 1976 Copyright
Act, which introduced the concept of "literary works," "pictorial works," "audiovisual
works," and the like—and which protected physical embodiments of such works, such as
books, paintings, video game cassettes, and the like against unauthorized copying and
distribution.
• The term "mask work" is not limited to actual masks used in chip manufacture, but is
defined broadly in the SCPA to include the topographic creation embodied in the masks and
chips.
• Moreover, the SCPA protects any physical embodiment of a mask work.
3. Enforcement:
• The owner of mask work rights may pursue an alleged infringer ("chip pirate") by bringing
an action for mask work infringement in federal district court.
• The remedies available correspond generally to those of copyright law and patent law.
4. Functionality Unprotected:
• The SCPA does not protect functional aspects of chip designs. That is reserved to patent
law.
• Although EPROM and other memory chips topographies are protectable under the SCPA,
such protection does not extend to the information stored in chips, such as computer
programs.
• Such information is protected, if at all, only by copyright law.

11
5. Reverse Engineering Not Prohibited:
• The SCPA permits competitive emulation of a chip by means of reverse engineering.
• The ordinary test for illegal copying (Mask Work Infringement) is the "substantial similarity"
test of copyright law, but when the defense of Reverse Engineering is involved and
supported by probative evidence, then, the accused chip topography must be substantially
identical rather than just substantially similar, for the defendant to be liable for
infringement.
• Most world chip topography protection laws provide for a Reverse Engineering Privilege.
Solution:
Domain Name:
• A Domain Name is an identification string that defines a sphere of administrative
autonomy, authority, or control on the Internet.
• Domain Names are formed by the rules and procedures of the Domain Name System (DNS).
• Domain Names are used in various Networking Contexts and Application-Specific Naming
and Addressing Purposes.
• In general, a Domain Name represents an Internet Protocol (IP) Resource, such as a
Personal Computer used to access the Internet, a Server Computer Hosting Web Site or the
Web Site itself or any other Service communicated via the Internet.
• If desired, we can register more than one Domain Name at the same time.
Steps of Registration:
Registering is done one step at a time as outlined below:
STEP 1: Use the Search function to verify that the Domain Name(s) you'd like is/are available.
STEP 2: Select the Domain Name(s) you want to Register.
STEP 3: Setup your Account Control Panel by entering a UserName and Password.
STEP 4: Select the number of years you want to Register.
STEP 5: Enter information to register your ownership of the domain name(s); Click on
"Continue".
STEP 6: Review your Contact Information. If the same information is to be used for the Technical,
Administrative and Billing Contacts, nothing further needs to be done. However, if there is
different person to be listed as the Technical, Administrative and/or Billing contacts, click on
that title to enter their information. If these are not changed, the registrant (owner) will be listed
as all contacts. Click on "Continue".
STEP 7: Enter the DNS (Domain Name Services) Data for your Website Host.
STEP 8: Add Web E-mail or E-mail Forwarding (if desired) and confirm that all the registration
information is correct.
STEP 9: Review and confirm that item(s) being ordered is/are correct; Make payment by Credit
Card – Shopping Cart is That SSL secured; Use your browser's Print button to print a receipt.
Conclusion:
• Your Domain Name(s) will be registered in Real-Time. Within 72 hours the Domain Name
will become accessible on the internet which is the normal Internet Propagation Time.

12
• The time for new DNS information to spread to the thousands of name servers all over the
internet.
• It is impossible for someone else to register your domain name after you registered it
because our domain name will be verified for availability through Shared Registration
Systems.
• Basically, these is a Universal Database of unavailable Domain Names.
• These Systems prevent a Domain Name that has been successfully registered from being
registered by others.
Solution:
Digital Copyright:
• The decentralized nature of Internet makes it possible for any user to disseminate a work
endlessly in the Cyberspace through an end number of outlets, thereby giving rise to global
piracy.
• Estimates of global losses from pirated books, music and entertainment software range into
billions of dollars.
• The Internet in a way presents a troublesome situation for copyright holders as the users
become mass disseminators of others copyright material and creates disequilibrium
between the authors and users.
• The advent of digital technology, therefore presents legislators with a choice: either expand
or modify existing 'old media notions' or redefine the catalogue of restricted acts.
Digital Copyright Issues:
Taking into account the peculiarities of the new environment, multiple aspects of issues are
discussed as given below.
The Right Of Reproduction (Web Casting):
• The Reproduction Right has been at the heart of Copyright Law for more than three
hundred years.
• Due to the lack of Agreement on the Right's Scope and Content, it did not include any
provision that expressly protected the Reproduction Right.
• The advent of the Internet makes the delimitation of the Reproduction Right more
Problematic in the Digital Age.
• Given that any transmission of protected works over the Internet involves the
reproductions transitorily stored in the connected computers' RAM.
The Right Of Communication To The Public (Database Protection):
• Digital Technology blurs the line between different categories of Copyrightable works and
the means of communication to the public as well.
• On the other hand, in the midst of fast development in Digital Technology, the Computer
Networks, in particular the Internet, brings forth a Point-To-Point way of transmitting works
on an on-demand and Interactive Basis.

13
• The interactivity and individuality afforded by this new method of exploiting works, makes
it possible for any member of the public to have the full discretion in determining the place
and the time one is intended to access and use works in digital form.
Legal Protection of Technological Measures (Source Of Protection):
• In Response to the increasing ease of reproduction and disseminating works over the
internet, copyright owners and their technology have designed entirely novel and more
effective technological measures, to constrain physical access to and use of their
copyrighted works.
• The North America Free Trade Agreement, 1992 provides for Criminal and Civil Remedies
against decoding the encrypted program carrying satellite signals and related acts.
Legal Protection of Rights Management Information (ISP
Liabilities):
• It is important that whenever a work or an object of related rights is requested and
transmitted over the network, the fact of the use is registered together with all the
information necessary to ensure that the agreed payment can be transferred to the
appropriate right owner(s).
• Various Technologies in this respect are available or being developed which will enable the
necessary feedback to the right owners.
• It is crucial, however, that such information is not removed or distorted, because the
remuneration of the right owners would in that case not be paid at all, or it would be
diverted.
Limitations and Exceptions (Rights Of Performance):
• From earliest times in the history of copyright, it has been recognized that in certain cases
limitations or exceptions should be placed on the exercise or scope of established rights
and may be termed as "Internal Restrictions".
• The reasons given for imposing such restrictions may be based on considerations of Public
Interest, prevention of Monopoly Control, etc.
• The limitations on copyright are necessary to keep the balance between two conflicting
Public Interests: the public interest in rewarding creators and the public interest in the
widest dissemination of their works, which is also the interest of the users of such works.
Copyright Enforcement In Digital Environment (Linking):
• Global Computer-Based Communications cut across Territorial Borders, creating a new
empire of human activity and undermining the feasibility and legitimacy of laws based on
geographical boundaries.
• Digital Technology has made Copyright Enforcement difficult to achieve.
• In the Online Environment, works such as Videos, Recordings of Musical Performances, and
texts can be posted anywhere in the world, retrieved from Databases in Foreign Countries,
or made available by Online Service Providers to subscribers located throughout the globe.
• Our System of International Copyright Protection, however, historically has been based on
the application of National Copyright Laws with Strict Territorial Effects and on the

14
Application of Choice-Of-Law rules to determine which country's copyright laws would
apply.
Solution:
Assignment:
• Assignment, as defined in Black's Law Dictionary, means the transfer by a party of all of its
rights or interest in the property.
• In case of intangible property like a patent, the transfer is made through an agreement to
this effect.
Assignment Vs. License:
The difference between Assignment and License:
1) A License merely confers a personal privilege to do some particular act(s) which the
licensee can perform. There is no transfer of interest in license.
2) On the contrary, assignment means the transfer of interest in the patent: whole or in part
of the patent rights, e.g., for the whole of India or a part thereof.
Assignee:
• The person in whose favor a right has been assigned is the assignee and the person who
assigns the right (patentee himself or his agent) is the assignor.
• In case an assignment has been made in favor of a person who has since died, the term
assignee would denote the legal representative that is the person who in law represents
the estate of the deceased person.
• Where assignment is made in favor of two or more persons, they become owners of such
interest in the patent.
Solution:
Types of Assignment:
There can be 3 kinds of Assignments as listed below:
(1) Legal Assignment
(2) Equitable Assignment
(3) Mortgage Assignment
1. Legal Assignment:
• An Assignment of an existing patent through an agreement which has been duly registered
is a Legal Assignment.
• A Legal Assignee has the right to have his name entered in the Register of patents
maintained in the Controller’s Office as proprietor of the patent and can thereafter exercise
all the rights conferred on him by the proprietor of patent.

15
2. Equitable Assignment:
• Any document such as letter not being an agreement, which is duly registered with
Controller in which patentee agrees to give another person certain defined right in the
patent with immediate effect, is an Equitable Assignment.
• An Assignee in such a case cannot have his name entered in the Register as the proprietor
of patent.
• He can only have a notice of his interest entered in the register.
• He can convert the Equitable Assignment to Legal Assignment by getting a written
Agreement to this effect and having it Duly Registered.
3. Mortgage:
• A Mortgage is also a form of Assignment.
• A Mortgage is a document transferring the Patent Rights either wholly or partly to the
Mortgagee with a view to secure the payment of a specified sum of money.
• The Mortgagor (patentee) is entitled to have the patent re-transferred to him on refund of
the money to the Mortgagee.
• The Mortgagee (a person in whose favor a mortgage is made) is not entitled to have his
name entered in the Register as the proprietor, but he can get his name entered in the
Register as a Mortgagee.
Solution:
Protection of Goodwill:
• Many country protect unregistered well known marks in accordance to international
obligations.
• Not only big company but also small scale enterprises have a good chance of establishing
goodwill with customers so that their trademarks are well recognized and well known that
acquires protection without registration, however it is important to register your
trademark, if not the reputation of trademark can be weekend by unauthorized use of that
mark by others.
• Every trademark user should be aware of the facts that are related to a number of
trademarks.
Trademark are registered and protected user the following conditions:
• The goods and services for which the marks is used and is not identified or similar to the
goods for which the well-known mark is being used.
• The use of another mark indicates a connection between these goods and the owner of
well-known Trademark.
• The user of the owner of the Trademark where his interest are likely to be damaged by such
use.

16
Solution:
Infringement:
Infringement of a trade mark occurs if a person other than the registered proprietor in the
course of trade, in relation to the same goods or services for which the mark is registered, uses
the same mark or a deceptively similar mark.
Essentials Of Infringement:
• The taking of any essential feature of the mark or taking the whole of the mark and then
making a few additions and alterations would constitute infringement.
• The infringing mark must be used in the course of trade, i.e., in a regular trade wherein the
proprietor of the mark is engaged.
• The use of the infringing mark must be printed or usual representation of the mark in
advertisements, invoices or bills. Any oral use of the trade mark is not infringement.
• Any or all of the above acts would constitute infringement if the same is done in such
manner as to sender the use of the mark likely to be taken as being used as a Trademark.
Solution:
IP Licensing:
• An IP licensing agreement occurs between an IP rights owner (“licensor”) and someone
who is authorised to use the rights (“licensee”) in exchange for monetary value in the form
of a fee or a royalty.
• The two parties agree on the terms and conditions via negotiation, with the outcome
dependent upon the bargaining power of each side.
Disadvantages:
• Though IP licensing is beneficial to both licensor & licensee, sometimes through licensing,
the owner may lose his control on the technology & there may be great risk of piracy &
exploitation by unauthorized parties.
• It may so happen that the licensee develops technology around the product, he has the
license for & make the original licensor to lose his superiority.
• The revenue from the licensee depends on his performance. Hence the licensor loses the
revenue to that extent. For the licensee, the technology may become redundant in short
span of time & he may have to go in for a new one at a higher price.
• In case the technology is not tested, the licensee will be at great risk of losing the money if
relevant risk aversion clauses are not stipulated in the agreement. Hence, in IPR licenses
agreement, the terms & conditions need careful drafting.

17
Solution:
About Enforcing IPR:
• Every right holder under the IPR is subject to the right to seek review by a judicial authority.
• These rights of the defendant should be an action without prejudice.
• In case of infringing cases the authority can dispose these infringing goods as per their
rights.
• Hence only in exceptional circumstances related to infringing goods these need not be
disposed.
Civil Remedies:
• The right holders concerning to the enforcement of IPR has to provide a written notice
within a stipulated timeframe to the defending party.
• Parties shall be allowed to have representatives to fight their cases individually.
• All parties during proceedings are entitled to their claims and need to present relevant
evidence.
• These procedures provide identification and protection of confidential information.
• The opposing party in appropriate cases needs to produce evidence which specifies the
situation related to the case.
• In cases where the parties are not allowed to access their goods in such cases the judicial
authorities make the final decisions based on the evidences presented by the parties who
are adversely affected by the denial of access to information.
Solution:
About Practical Aspects Of Licensing:
• Practical aspects of licensing permission from one person to another to undertake some
activity a license agreement is formal and is in a written format which legally abides all the
rules and regulations of the national law in this country.
• A license agreement includes two parties the licensor and the licensee.
• The licensor is the one who owns the intellectual property and agrees this property and
agrees this property to be use by another person.
• The licensee is the one who receives the right to use the intellectual property for exchange
of payment.
• Hence, a license in as an agreement which is in partnership between IP owner (licensor)
and the authorized user (licensee) under certain conditions for which monetary
compensations paid.
• Thus, a license grants the licensee the rights to use property but without transferring the
ownership of the property.

18
Intellectual Property Effective Conditions (Determination Factor):
Intellectual Property License can be effective if 3 conditions are met as follows listed:
(1) The licenser or must be the owner of the property.
(2) The IP must be protected by the law or at least by eligible protection.
(3) The license must specify the rights of the licensee and the payment required that need to
be paid for the IP assets which are given in exchange as per the license agreement which
is clearly stated.
Solution:
Licensing Agreement:
A Licensing Agreement is a partnership between an IP owner (licensor) & someone who is
authorized to use such rights (licensee), in exchange for an agreed payment (fee or royalty).
Types Of Licensing Agreement:
A variety of such Licensing Agreements are available, which may be broadly categorized as
follows:
1) Technology License
2) Joint Venture License
3) Franchising OR
4) Trade-Mark License
5) Copyright License
• In practice, sometimes all IP rights form the part of one Agreement.
• These types of agreements are often observed in mergers & acquisitions, Joint ventures or
take overs.
• In the international context, a formal licensing agreement is possible only if the IPR licensor,
who wishes to license, is also protected in the other country or countries of interest.
• If IP is not protected in other country or countries then licensing in that country is not
possible as licensor would have no legal right to put any restrictions on its use by any other
party.
Solution:
Scopes of Cyber Laws:
E-Commerce Law:
E-Commerce defined simply, is the commercial transaction of services in an electronic format.
Any duplicate involving any E-Commerce activity, whether at buyer or seller’s end, would mean
dispute happening in the Cyberspace.
Online Contracts:

19
Online Contracts represent the formation of series of contractual obligations in an online
environment. From a legal perspective, an online contract follows the same pre-requisite as
being followed in offline (physical) contract.
Copyright:
Copyright protects “original works of authorship” that are fixed in any tangible medium of
expression from which they can be perceived, reproduced, or otherwise communicated either
directly or with the aid of a machine or device.
Business Software Patenting:
With the advent of worldwide web and e-commerce coming of age, the debate of software
patenting acquired a new platform in the form o 'business software patents'.
Big E-Commerce etailers, like Amazon, Priceline and Ebay are going for patenting the backend
software technologies of their front-end operations.
E-Governance:
E-Governance is a kind of “Window of Opportunity" facilitating a much faster, convenient,
transparent and dynamic interaction between the government and its people.
Cyber Crimes:
Cybercrime is a collective term encompassing both "Cyber Contraventions" and "Cyber
Offences".
Electronic Signatures:
Electronic Signatures are used to authenticate records. Digital Signatures are one type of
Electronic Signature.
Data Protection and Privacy:
Data Protection and Privacy laws aim to achieve a fair balance between the privacy right of the
individual and the interests of data controllers such as banks, hospitals, email service providers
etc.
Solution:
Uniform Domain-Name Dispute-Resolution Policy:
• The Uniform Domain-Name Dispute-Resolution Policy (UDRP) is a process established by the
Internet Corporation for Assigned Names and Numbers (ICANN) for the resolution of
disputes regarding the registration of internet domain names. The UDRP currently applies
to all generic top level domains (.com, .net, .org, etc...), some country code top-level
domains, and some older top level domains in specific circumstances.
• All registrars must follow the Uniform Domain-Name Dispute-Resolution Policy (often
referred to as the "UDRP"). Under the policy, most types of trademark-based domain-name
disputes must be resolved by agreement, court action, or arbitration before a registrar will

20
cancel, suspend, or transfer a domain name. Disputes alleged to arise from abusive
registrations of domain names (for example, cybersquatting) may be addressed by
expedited administrative proceedings that the holder of trademark rights initiates by filing
a complaint with an approved dispute-resolution service provider.
• To invoke the policy, a trademark owner should either (a) file a complaint in a court of proper
jurisdiction against the domain-name holder (or where appropriate an in-rem action
concerning the domain name) or (b) in cases of abusive registration submit a complaint to
an approved dispute-resolution service provider (see below for a list and links).
Solution:
Enforcement of Patent Rights:
• In most systems, a patent is the right enforceable in a court, usually to prevent the
manufacture, sale and use of a patented invention. It is not, as many people think,
permission to practice the patented invention, which may be subject to restrictions for
other reasons such as security or public health. Application is made to the court to stop the
unauthorized manufacture, sale or use of the invention, so that the court may grant the
appropriate order and stop the infringement. In practice, however, the process is less
straightforward than it sounds. Assessing the Scope of Patent Rights.
• When thinking about patent enforcement, a patentee must first assess what he has
patented. It is now a feature of just about all patent systems that a patent must include
either a specification containing claims or a description, claims or any required drawings
(depending on the terminology of the particular law). In most systems, the claims are
decisive, as they define the scope of protection sought and eventually granted through the
patent. The specification or the description and drawings may be used to interpret the
claims, which must be fully supported by them.
• Most inventors use the services of a patent attorney to write the specification for them. An
inventor may not fully understand the specification, and particularly may have difficulties
in understanding the claims. Even where the patentee has some idea of the exclusive right
granted to him in his own country, it is very rare for him to know with any precision what
rights he may have in corresponding patents in other jurisdictions. The patentee’s first real
understanding of the extent of his patent rights often only comes to him when he is
considering enforcement.
• Thus the basis for enforcement of patent rights is established at the start of the patenting
process when the patent specification is written by the inventor or the inventor’s patent
attorney. The examination process in the Patent Office can modify the original wording.
The inventor will normally try to avoid any modification which will result in a limitation of
the scope of protection, for any reduction in the scope of protection makes it easier for a
competitor to avoid infringement. If a competitor can easily supply the market with
something that is equivalent to the invention, but does not infringe the patent, then the
patent may be of limited commercial value. Patent Office examiners should try to
remember this when an applicant for a patent steadfastly resists amending his claims in
order to overcome an objection, but instead tries to deal with the objection by argument.

21
While acceding to an amendment might lead to the early grant of a patent on the
application, it may also lead to a patent right of doubtful commercial utility. Evaluating
Validity and Infringement of a Patent.
• Having assessed the scope of the patent right, the next task is for the patentee to decide if
there is infringement. Before committing himself to the financial risk of a patent case —
which can be among the most time-consuming and expensive of all forms of litigation — a
patentee, unless he is very wealthy and relaxed about money, must make some attempt to
forecast whether he can be successful.
• The issue of infringement is very rarely considered on its own. Patents, like other forms of
intellectual property, do not only affect the parties to a dispute; they have an effect on the
public at large. This being the case, it is normally considered that a patent which can be
shown to be invalid cannot be enforceable. In spite of the examination of patent
applications during prosecution, no patent system guarantees the validity of a granted
patent. In a patent enforcement action, therefore, a defendant will usually add to any
defense of non-infringement a further defense, often in the form of a counterclaim, that
the patent is invalid and hence not enforceable even if infringed. In some jurisdictions, the
issues of infringement and validity are heard together. In others, the question of validity is
heard separately by a different court or it may be referred to the Patent Office.
• Because of the principle that no invalid patent should be enforceable, the defendant in a
patent action is usually allowed to bring in evidence of invalidity at any stage of the
proceedings, and in some jurisdictions even during the trial itself. As a result, the position
of the patentee during patent enforcement proceedings tends to deteriorate as a
defendant makes searches and often finds evidence which is relevant to validity.
Solution:
Role and Function of Certifying Authorities:
• Certificate Authority (CA) is a trusted entity that issues Digital Certificates and public-private
key pairs. The role of the Certificate Authority (CA) is to guarantee that the individual
granted the unique certificate in fact who he or she claims to be.
• The Certificate Authority (CA) verifies that the owner of the certificate is who he says he is.
A Certificate Authority (CA) can be a trusted third party which is responsible for physically
verifying the legitimacy of the identity of an individual or organization before issuing a digital
certificate.
• A Certificate Authority (CA) can be an external (public) Certificate Authority (CA) like
Verisign, Thawte or Comodo, or an internal (private) Certificate Authority (CA) configured
inside our network.
• A Certificate Authority (CA) is a critical security service in a network.
• Certificate Authority (CA) verifies the identity: The Certificate Authority (CA) must validate
the identity of the entity who requested a Digital Certificate before issuing it.
• Certificate Authority (CA) issues Digital Certificates: Once the validation process is over, the
Certificate Authority (CA) issues the Digital Certificate to the entity who requested it. Digital
Certificates can be used for encryption (Example: Encrypting Web Traffic), Code Signing,
Authentication, etc.

22
• Certificate Authority (CA) maintains Certificate Revocation List (CRL): The Certificate
Authority (CA) maintains Certificate Revocation List (CRL). A Certificate Revocation List (CRL)
is a list of Digital Certificates which are no longer valid have been revoked and therefore
should not relied by anyone.
Solution:
Need of IT Act and its Amendments:
• An Act to 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.
• It is considered necessary to give effect to the said resolution and to promote efficient
delivery of Government services by means of reliable electronic records.
• Be it enacted by Parliament in the Fifty-first Year of the Republic of India.
Two Major Changes: Section 1 and Section 2
Section 1: Short Title, Extent, Commencement and Application
(1) This Act may be called the Information Technology Act, 2000 [as Amended by Information
Technology (Amendment) Act 2008].
(2) It shall extend to the whole of India and, save as otherwise provided in this Act, it applies
also to any offence or contravention hereunder committed outside India by any person.
(3) It shall come into force on such date as the Central Government may, by notification,
appoint and different dates may be appointed for different provisions of this Act shall be
constructed as a reference to the commencement of that provision.
(4) Nothing in this Act shall apply to documents or transactions specified in the First Schedule
by way of addition or deletion of entries thereto.
(5) Every notification issued under sub-section (4) shall be laid before each House of
Parliament.
Section 2:
(1) In this Act, unless the context otherwise requires,
(a) "Cyber Appellate Tribunal" means the Cyber Appellate * Tribunal established under
sub-section (1) of section 48 (* "Regulations" omitted)
(b) "Cyber Café" means any facility from where access to the Internet is offered by any
person in the ordinary course of business to the members of the public.
(c) "Digital Signature Certificate" means a Digital Certificate issued under sub-section (4)
of section 35.
(d) "Electronic Record" means data, record or data generated, image or sound stored,
received or sent in an electronic form or micro film or computer generated micro fiche.

23
(e) "Electronic Signature" means authentication of any electronic record by a subscriber
by means of the electronic technique specified in the second schedule and includes
digital signature.
(f) "Electronic Signature Certificate" means an Electronic Signature Certificate issued
under section 35 and includes Digital Signature Certificate.
(g) "Indian Computer Emergency Response Team" means an agency established under
sub-section (1) of section 70 B.
(h) "Information" includes Data, Messages, Text, Images, Sound, Voice, Codes, Computer
Programmers, Software and Databases OR Micro Film OR Computer Generated Micro
Fiche.
Solution:
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.
Secure Digital Signature:
If, by application of a security procedure agreed to by the parties concerned, it can be verified
that a Digital Signature, at the time it was affixed, was –
• Unique to the subscriber affixing it.
• Capable of identifying such subscriber.
• Created in a manner or using a means under the exclusive control of the subscriber and is
linked to the electronic record to which it relates in such a manner that if the electronic
record was altered the digital signature would be invalidated then such digital signature
shall be deemed to be a secure digital signature.
Security Procedure:
The Central Government shall for the purposes of this Act prescribe the security procedure
having regard to commercial circumstances prevailing at the time when the procedure was used,
including –
• The nature of the transaction.
• The level of sophistication of the parties with reference to their technological capacity.
• The volume of similar transactions engaged in by other parties.
• The availability of alternatives offered to but rejected by any party.
• The cost of alternative procedures, and
• The procedures in general use for similar types of transactions or communications.

24
Solution:
Who Are Intermediaries?
• Intermediaries, such as hosts, transitory communication systems, information location
tools etc., are widely recognized as essential mechanism in the wheel of exercising the right
to freedom of expression on the Internet.
• Most major jurisdictions around the world have introduced legislations for limiting
intermediary liability in order to ensure that this wheel does not stop spinning.
Act And Its Provision:
• India amended Section 794 of the Information Technology Act 2000 (hereinafter referred
to as the Act) in 2008 and joined the club of nations that limit intermediary liability.
• Though the guiding principles for intermediary liability policy in India are derived from the
European Union E-Commerce Directive , such principles have been incompletely,
incorporated into the Rules without adapting them to the requirements of India in the
current context.
Conditions Under Which Intermediary Gets Exemption:
a) Intermediary may claim that the takedown notice region is not applicable to search engines
as they fall within the scope of the exemption offered by Rule 3(3) provision (a). The rule
includes temporary or transient or intermediate storage of information automatically
within the computer resource as an intrinsic feature of such computer resource.
b) If the system of contextual advertisements has been subcontracted by Intermediary to
another intermediary, as a result of which, Intermediary does not have any particular
control over the advertisements. Thus he exempted.
c) If the author had not established himself as an affected party then the intermediary will be
exempted from liability
d) If the intermediary builds sufficient grounds to claim benefit of the exemption in Rule 3(3)
provision (a). This provision is essentially meant to provide an exemption for techniques
such as packet switching, statistical multiplexing or any other store and forward techniques.
e) If an intermediary had not appointed a Grievance Officer as required under Rule 3(11) or
modified its content policy as required under Rule 3(2) then he or she may be exempted.
f) Intermediary will not get exemption if he or she deletes the comments from the takedown
notice intentionally. The comments include the following:
• The comment on the impugned URL is "racially and ethnically objectionable" as
provided in Rule 3(2)(b) of the Rules
• The comment on the impugned URL is "hateful" as provided in Rule 3(2)(b) of the Rules.
• The comment on the impugned URL is "disparaging" as provided in Rule 3(2)(b) of the
Rules.
• The comment on the impugned URL is "defamatory" as provided in Rule 3(2)(b) of the
Rules.

25
• The comment on the impugned URL "violates any law for the time being in force" as
provided in Rule 3(2)(e) of the Rules read with Sections 124A, 153A, 153B, 292A, 295A
and 499 of the Indian Penal Code 1860.
Solution:
Five Major Points of Focus:
1. Penalty of damage of Computer, Computer System, etc.
If any person without permission of the owner or any other person who is incharge of a
Computer, Computer or Computer Network –
(a) Accesses or secures access to such computer, computer system or computer network;
(b) Downloads, copies or extracts any Data, Computer Database or information from such
Computer, Computer System or Computer Network including information or data held or
stored in any removable Storage Medium;
(c) Introduces or causes to be introduced any Computer Contaminant or Computer Virus into
Any Computer, Computer System or Computer Network;
(d) Damages or causes to be damaged any Computer, Computer System or Computer
Network, Data, Computer Database or other Programmes residing in such Computer,
Computer System or Computer Network;
(e) Disrupts or causes disruption of any Computer, Computer System or Computer Network;
(f) Denies or causes the denial of access to any person authorised to access any Computer,
or computer network by any means;
(g) Provides any assistance to any person to facilitate access to a Computer, Computer System
or Computer Network in contravention of the Provisions of this Act, rules or regulations
made thereunder;
(h) Charges the services availed of by a person to the account of another person by tampering
with or manipulating any Computer, Computer System, or Computer Network, he shall be
liable to pay damages by way of compensation not exceeding one crore rupees to the
person so affected.
Explanation: For the purpose of this section –
(i) "Computer Contaminant" means any set of computer instructions that are designed –
(a) To modify, destroy, record, transmit data or programme residing within a
computer, computer system or computer network; or
(b) By any means to usurp the normal operation of the computer, computer system, or
computer network;
(ii) "Computer Data Base" means a representation of information, knowledge, facts,
concepts or instructions in text, image, audio video that are being prepared or have been
prepared in a formalised manner or have been produced by a computer, computer
system or computer network and are intended for use in a computer, computer system
or computer network;
(iii) "Computer Virus" means any computer instruction, information, data or programme
that destroys, damages, degrades or adversely affects the performance of a computer
resource or attaches itself to another computer resource and operates when a

26
programme, data or instruction is executed some other event takes place in that
computer resource;
(iv) "Damage" means to destroy, alter, delete, add, modify or rearrange any computer
resource by any means.
2. Penalty for failure to furnish information, return, etc.
If any person who is required under this Act or any rules or regulations made there under to –
(a) Furnish any document, return or report to the Controller or the Certifying Authority fails
to furnish the same, he shall be liable to a penalty not exceeding one lakh and fifty
thousand rupees for each such failure;
(b) File any return or furnish any information, books or other documents within the time
specified therefore in the regulation fails to file return or furnish the same within the time
specified therefor in the regulations, he shall be liable to a penalty not exceeding five
thousand rupees for every day during which such failure continues;
(c) Maintain books of account or records, fails to maintain the same, he shall be liable to a
penalty not exceeding ten thousand rupees for every day during which the failure
continues.
3. Residuary Penalty:
Whoever contravenes any rules or regulations made under this Act, for the contravention of
which no penalty has been separately provided, shall be liable to pay a compensation not
exceeding twenty-five thousand rupees to the person affected by such contravention or a
penalty not exceeding twenty-five thousand rupees.
4. Power To Adjudicate:
(1) For the purpose of adjudging under this Chapter whether any person has committed a
contravention of any of the Provisions of this Act or of any rule, regulation, direction or
order made thereunder the Central Government shall, subject to the provisions of sub-
section (3), appoint any officer not below the rank of a Director to the Government of India
or an equivalent officer of a State Government to be an adjudicating officer for holding an
inquiry in the manner prescribed by the Central Government.
(2) The adjudicating officer shall, after giving the person referred to in sub-section (1) a
reasonable opportunity for making representation in the matter and if, on such inquiry,
he is satisfied that the person has committed the contravention, he may impose such
penalty or award such compensation as he thinks fit in accordance with the provisions of
that section.
(3) No person shall be appointed as an adjudicating officer unless he possesses such
experience in the field of Information Technology and legal or judicial experience as may
be prescribed by the Central Government.
(4) Where more than one adjudicating officers are appointed, the Central Government shall
specify by order the matters and places with respect to which such officers shall exercise
their jurisdiction.
(5) Every adjudicating officer shall have the powers of a civil court which are conferred on the
Cyber Appellate Tribunal under sub-section (2) of section 58, and-

27
(6) All proceedings before it shall be deemed to be judicial proceedings within the meaning
of sections 193 and 228 of the Indian Penal Code;
(7) Shall be deemed to be a civil court for the purpose of section 345 and .46 of the Code of
Criminal Procedure, 1973.
5. Factors to be taken into account by the adjudicating officer:
While adjudging the quantum of compensation under this Chapter, the adjudicating officer shall
have due regard to the following factors, namely –
(a) The amount of gain of unfair advantage, wherever quantifiable, made as a result of the
default;
(b) The amount of loss caused to any person as a result of the default;
(c) The repetitive nature of the default.
Q.7. Attempt Any Three Questions: (15 Marks)
Solution:
Basic Principles of Design Rights:
The basic principles of design rights are as follows:
• The rights of exclusive use of design is registered under the Designs Act 2000. This Act is
enforced from the date of registration.
• If the Design Act has been registered, it can be further extended from the original period
of registration.
• Right to protect the design from piracy which causes infringement. Any person responsible
for infringing a registered design and found guilty is liable to a fine of rupees not exceeding
25000.
• The registered owner has the right to file a suite for recovery of damages so that his
reputation does not get affected and he can recover this by getting an amount not
exceeding Rs. 50000.
• The registration of design includes the provisions of section 20 of Design Act 2000, which
includes that the government can use certain design under various circumstances when the
article is not made available to the public at reasonable prices.
• Section 11 of Designs Act 2000 provides the term for registration which may be extended
to further 5 years till a maximum period of 15 years.
Solution:
Basic Principles of Design Rights:
• If the Information Commissioner finds that the DPA has been breached by a DC, he serves
an enforcement notice on DC.
• The notice identifies the breach or commission, and specifies how to correct it.
 Failure to comply is an offence.
 However, a DC may appeal it the DP tribunal.

28
 With the approval of the director of Public Prosecutions, legal proceedings may follow,
which could result is a fine.
Enforcement Data Protection Act In Media:
• The DPA has special provision for journalism, and artistic or literary purposes.
 Basically, journalists may hold personal data for journalistic purposes only if the data
are necessary to reconcile the rights to privacy with the rules governing freedom of
expression.
• So, investigable journalists & political satirists or commentators are not treated as Data
Controllers.
• Enforcement Data protection in internet.
• The UK/EU legislation seems fairly strong. But can trans-border transfer of data.
Solution:
Rights Granted For Registration Of Design:
• A person has the right for exclusive use of the design which is subject to the provision of
Design Act, 2000. Hence the Design registered under this act can be used from the date of
registration.
• If the design provision gets expired then the applicant can extend the period of design by
paying the prescribed fees.
• Every person has a right to protect the design from piracy. Any person responsible for
infringing the registered design then he is liable to pay a fine of a sum not exceeding 25,000.
• Under section 20 of the design Act, 2000. There are exceptions in case of using the design
related to the government. Hence the government can use the registered design which
prohibits other person to use this design under certain circumstances.
• Section 11 of the Design Act, 2000 has provided extension period if the registered design
gets expired. Hence the maximum period of extending the registered design is for 15 years.
Solution:
Licensing For Technology:
• By a technology licensing agreement, the licensor authorizes the licensee to use the
technology under certain agreed terms and conditions.
• It is therefore, a contract freely entered into between two parties and contains terms &
conditions so agreed upon.
• Through a technology licensing agreement, it is possible to improve the quality of existing
product or develop and manufacture a new product by using the patents or trade secrets
owned by others.
• This may also include entering into a new market or extending in the existing market for a
product by acquiring the patent rights.
Example:

29
Tata Steel has obtained a process technology patent for making hybrid rollers used in sinter
plants. This patent is now licensed to Jyoti Cero Rubber to get potential revenue over next three
years. Looking at the wider market Tata Steel is licensing this technology to other competent
parties.
Solution:
Copyright Issue In India AND Copyright In WWW:
• The traditional concept of copyright has given place to a more complex meaning to cope
up with the advancements in the nature of works and the mediums of their expressions
that merit protection under the Copyright Law. Innumerable issues arise in the process of
a virtual tug of war between the copyright holders and their infringers. Stringent remedies
are devised to safeguard the intellectual property rights and amendments have been made
in the legislation governing IPR in India and Information Technology Act, 2000 has been
enacted to be in tune with the international concerns reflected in the WIPO Treaties and
other International documents.
• The Copyright Act, 1957 has been enacted by the Parliament in the exercise of its legislative
powers conferred by Entry 49 of the Seventh Schedule to the Constitution of India with a
view to amend and consolidate the law relating copyright. As provided in Section 16, no
person shall be entitled to copyright or, any similar right in any work, whether published or
unpublished, otherwise than under and in accordance with the provisions of this Act or of
any other law for the time being in force.
• The Parliament enacted the Information Technology Act, 2000 which provides legal
recognition to electronic record and digital signatures. The expression “electronic record”
as defined by Section 2(1)(t) of that Act means, data, record or data generated image or
sound stored, received or sent in an electronic form or micro film. Tampering with
computer source documents is made an offence under Section 65 of the Act, which
provides that, whoever knowingly or intentionally conceals, destroys or alters or
intentionally or knowingly causes another to conceal, destroy or alter any computer source
code used for a computer, computer programme, computer system or computer network,
when the computer source code is required to be kept or maintained by law for the time
being in force, shall be punishable with imprisonment upto three years, or with fine which
may extend upto two lakh rupees, or with both.
Solution:
Cyber Appellate Tribunal:
(1) The Cyber Appellate Tribunal shall not be bound by the procedure laid down by the Code
of Civil Procedure, 1908 but shall be guided by the principles of natural justice and, subject
to the other provisions of this Act and of any rules, the Cyber Appellate Tribunal shall have
powers to regulate its own procedure including the place at which it shall have its sitting.
(2) The Cyber Appellate Tribunal shall have, for the purposes of discharging its functions under
this Act, the same powers as are vested in a civil court under the Code of Civil Procedure,
1908, while trying a suit, in respect of the following matters, namely –

30
(a) Summoning and enforcing the attendance of any person and examining him on oath;
(b) Requiring the discovery and production of documents or other electronic records;
(c) Receiving evidence on affidavits;
(d) Issuing commissions for the examination of witnesses of documents;
(e) Reviewing its decisions;
(f) Dismissing an application for default or deciding it ex parte;
(g) Any other matter which may be prescribed.
(3) Every proceeding before the Cyber Appellate Tribunal shall be deemed to be a judicial
proceeding within the meaning of sections 193 and 228, and for the purpose of section
196 of the Indian Penal Code and the Cyber Appellate Tribunal shall be deemed to be a
civil court for the purposes of section 195 and Chapter XXVI of the Code of Criminal
Procedure, 1973.
***

IPR & Cyber Laws (April - 2015) [CBSGS - Paper Solution]

Recommended

Recommended

More Related Content

Similar to IPR & Cyber Laws (April - 2015) [CBSGS - Paper Solution]

Similar to IPR & Cyber Laws (April - 2015) [CBSGS - Paper Solution] (20)

More from Mumbai B.Sc.IT Study

More from Mumbai B.Sc.IT Study (20)

Recently uploaded

Recently uploaded (20)

IPR & Cyber Laws (April - 2015) [CBSGS - Paper Solution]