IPR & Cyber Laws (April - 2017) [CBSGS - Paper Solution]

Book Code: TYBSCIT-IPR-007
May – 2019 #ISSUE – 16
Mumbai University
IPR & CYBER
LAWS

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© Mumbai B.Sc.IT Study Kamal T.
IPR and Cyber Laws
Paper Solution
 University: University of Mumbai
 Year: April – 2017
 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)
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IPR AND CYBER LAWS
(PAPER SOLUTION)
APRIL – 2017 | CBSGS – 75:25 PATTERN
BY
KAMAL THAKUR

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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
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Q.2. Attempt Any Two Questions: (10 Marks) ..................................... 8
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Q.3. Attempt Any Two Questions: (10 Marks) ................................... 10
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Q.7. Attempt Any Three Questions: (15 Marks)................................ 20
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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:
Contents of Patent Specification
Section 10 of the Act lists the contents of the complete specification as follows:
(1) The invention shall be titled sufficiently indicting the subject-matter to which the invention
relates.
(2) The full and particular description of the invention and its operation or use and the method
by which it is to be performed.
(3) The disclosure of the best method of performing the invention which is known to the
applicant and for which he is entitled to claim the protection.
(4) The claims defining the scope of the invention for which the protection is claimed.
(5) The specification shall be accompanied by an abstract to provide technical information on
the invention.
(6) In case of an international application designating India the title, description, drawings,
abstract and claims field with the application shall be taken as a complete specification.
(7) The Claim(s) of a complete specification shall relate to a single invention, or to a group of
inventions linked so as to form single inventive concept, shall be clear and succinct and
shall be fairly based on the matter disclosed in the specification.
(8) The declaration as to the inventorship of the invention, shall be furnished within the period
prescribed after filling of the specification.
(9) The complete specification filed after a provisional specification may include claims in
respect of developments of, or addition to the invention which was described in the
provisional specification, being developments or additions in respect of which the
applicant would be entitled under the provisions of section 6 to make a separate
application for a patent.

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Section 10(2) provides that a Controller may require drawings to be supplied, which shall form
part of the specification.
Solution:
Basic Principles of Trademark
A trademark is a sign that individualizes the good or services of a given enterprise and
distinguishes them from its competitors.
Principles:
(1) Since the registration confers on the proprietor a kind of monopoly right over the use of
the mark, which consists of a word or a symbol legitimately require by other traders for
Bonafide Trading or Business purpose, certain restrictions are necessary on the class of the
words or symbols over which such monopoly right may be granted.
(2) Registrations of a trademark must not interfere with the Bonafide use by any person of his
own name or that of his business, or the use of any Bonafide description of the character
or quality of goods.
(3) Property rights in a trademark acquired by use are superior to similar rights obtained by
registration under the enactment.
(4) There are two main interests to be protected when a mark is presented for registration.
There is first interest of the public. A trademark ought not to be registered if its use will be
option to mislead the public as to the origin of the goods as they are purchasing.
(5) It may so happen that a trader honestly used a trademark for a number of years although
an identical or similar mark has been registered or used by another.
(6) Broadly, the life of a trademark depends upon its use and continued non-used may lead to
its eventual death.
Solution:
International Background of Intellectual Property Rights
Knowledge of international background – key issues when exporting;
• Identifying Export Markets
• Estimating Demand
(1) Packing of the product will partly depend on the extent to which the trademark is
recognized & value by consumers, & the extent to which product will face competition
from rival products.
(2) Adaption of product/brand/design/packaging will involve creative or invention work that
may be protected through the IP System.
(3) Finding local partners & channels of distribution. Adapting the
product/design/brand/packaging. Contractual agreements with expert sales reps,
distributors, licenses, local manufactures

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(4) Determining Price: Making transport arrangement, advertising & marketing the product.
Solution:
Data Protection Act
The Data Protection Act, 1998 rules to strike a balance between the rights of individuals & the
sometimes competing interests of those with legitimate reasons for using personal information.
The DPA gives individuals certain rights regarding information held about them. It places
obligations on those who process information while giving rights to those who are the subject
of that data personal information covers both facts & opinion about the individual.
The right principles of good practice:
(1) Fairly & lawfully processed
(2) Processed for limited purposes
(3) Adequate relevant & not excessive
(4) Accurate & up to date
(5) Not kept longer than necessary
(6) Processed in accordance with the individual’s rights
(7) Secure
(8) Not transferred to outside European Economic area unless country.
Solution:
Agreement on Trade-Related Aspects of Intellectual Property Rights
(1) The agreement on TRIPS becomes part of act because of strong forces or pressure by
industrialized countries. The developing countries vertically forced to negotiate enhanced
standard of protection in GATT (General Agreement on Trade and Tarniff).
(2) With WTO and TRIPS an awareness of importance of IPR was created resulting into the
information of standards for protection of IPR in developing & under developed countries.
(3) TRIPS facilities the improvement of basic awareness of IP assets, upgradation & monitoring
the IP Legal framework.
(4) The TRIPS Agreement has now become most comprehensive & influential international
agreement on IPR.
(5) It leads to considerable attention to deal at national level in series of issues.
(6) By providing patent protection, TRIPS will help to generate increased profit for patent
holder on new technologies.
(7) The WTO; TRIPS Agreement is an attempt to reduce or narrow the gaps in the way these
rights are protected around the world.

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Solution:
Concept of Semi-Conductors
A semiconductor integrated circuit is a product having transistors and other circuitry elements,
which are inseparably formed on a semiconductor material or an insulating material or inside
the semiconductor material and designed to perform an electronic circuitry function.
Need for Protection of IC Designs:
Product life cycles in many industries are shortening. The length of time and amount of
investment required, to obtain intellectual property rights, especially patents, can be
disproportionate to the life of such product. Requirement such as the need to mark products
with “patent pending” also become impracticable when products have short life cycles and use
many different technologies subject to different patents, especially when these products are
miniaturized.
Semiconductor Integrated Circuits Layout Design:
The semiconductor Integrated Circuits Layout Design Act, 2000, provides protection for
semiconductor IC Layout Designs. SICLD Act is a sui-generis (one of its kind) specifically meant
for protecting IPR relating to Layout-Design (Topographies) of Semiconductor Integrated Circuit.
The subject of Semiconductor Integrated Circuits Layout Design has two parts, namely:
(1) Semiconductor Integrated Circuit: Semiconductor Integrated Circuit means a product
having transistors and other circuitry elements, which are inseparably formed on a
semiconductor material or an insulating material or inside the semiconductor material and
designed to perform an electronic circuitry function.
(2) Layout-Design: The Layout-Design of a Semiconductor integrated circuit means a layout
of transistors and other circuitry elements and includes lead wires connecting such
elements and expressed in any manner in semiconductor integrated circuits.
Criteria for Registration of a Chip Layout Design:
• Original,
• Distinctive and
• Capable of distinguish from any other Layout Design.
NOTE: “Only the layout-design” – which essentially is the mask layout – floor planning of the
integrated circuits can be registered under the SICLD Act 2000 and not the other information
like any idea, procedure, process, system, programme stored in the integrated circuit, method
of operation, etc.
Layout-designs are prohibited from registration under the Act if they are as follows:
• Not Original;
• Have been commercially exploited anywhere in India or in a Convention country i.e. any
country that the Government of India notifies in the Official Gazette for the fulfillment of a

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treaty, convention or an arrangement with any country outside India and which affords to
citizens of India similar privileges as are granted its own citizens;
• Not inherently distinctive;
• Not inherently capable of being distinguishable from any other registered layout-design.
Term of Protection:
This registration is valid for a term of ten years from the date of filing an application for
registration or from the date of first commercial anywhere in the world, whichever is earlier.
Solution:
Domain Name and disputes in Domain Name
The original role pf having a domain name was to provide and internet address for computers.
With the increasing rate of commercial activities on the web, a domain name is now seen as a
way of identifying the business of the company. A potential consumer is always lured to the
company after he/she goes through their website. Hence, a company keeps it in mind to obtain
such domain names which are easily identifiable & related to their established trademarks. One
of the raging crimes in the recent years committed on the web is “cyber-squatting”. It is
identified as malpractice where individuals use a domain name reflecting the name of a prior
existing company, intending to attain profit form the good will of a trade mark already belonging
to someone else.
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.

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• 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:
Copyright is Protection in form & not in idea
 Copyright is a bundle of exclusive rights granted by law to the creators of literacy, dramatic,
musical and artistic works and the producers of cinematography films, sound recordings and
computer software to do or authorized the doing of certain acts with the regard to them
creations. It is kind of protection against unauthorized use of a work.
 Copyright is usually defined as the legal rights granted to an author composer, playwright,
publisher or distributer to exclusive publication, production, distribution or a literacy,
musical, dramatic or artistic or original commercial design work.
 A person may have a brilliant idea for a story or for a picture but if he communicates that
idea to an artistic or play writer then the production which is the result of the
communication of the idea is the copyright of a person who has clothed the idea in a form.
 Since there is no copyright in idea or information, it is no infringement of copyright to adopt
the ideas of another or to publish information derived from another provided them is no
copying of the language in which those ideas have or that information has been embodied.
Solution:
Defences available in case of Infringement of Trademarks and Design
The defendant may set up and of the following offenses:
(1) The plaintiff in the suit has no title to sue questioning the proprietorship of the trademark
owner may do this.
(2) That the use of the mark by the defendant is not an infringement or is protected by the
provisions of section 30 which lists out the acts which do not constitute infringement.
(3) That the defendants right to use contested mark issues by virtue of concurrent
registration.
(4) That the defendant is the prior user of the disputed mark.
(5) That the defendant has been an honest concurrent user.
(6) That the use complained of is merely the defendants Bonafide use of his owner name,
address and description of goods which are protected by the act.
(7) That the defendant can attack the validity of registration of the plaintiff.

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Solution:
Trademark:
Under section 2(1)(zb) of Trademark Act, 1999 defines trademark as “a mark capable of being
represented graphically and which is capable of distinguishing between the goods or services of
one person from those of others which may include shape of goods, packaging and combination
of colors.
Essential Elements Of Trademark:
As per the definition of Trademark, under this act the following criteria needs to be followed in
order for the Trademark to be successful.
(1) Trademark must be a mark which includes colors, brands, heading, labels, names,
signature, words, letters, numerical, shapes of goods or packaging.
(2) The mark must be capable of being represented graphically.
(3) It must be capable of distinguishing the goods or services from one person to another.
(4) It may include shapes of goods, their packaging or combination of colors.
(5) It may be used in relation to goods or services.
(6) It must be used for the purpose of indicating the trade between goods or services and
between persons who are permitted to use the mark.
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.
• 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:
General Obligations for enforcement of Intellectual Property Rights

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(1) Member countries shall ensure that enforcement procedures are available under their
national law so as to permit effective action against any act of infringement of IPR covered
under TRIPS Agreement.
(2) Producers concerning the enforcement of IPR shall be fair and equitable.
(3) Decisions on the merits of a case shall preferably in writing and reasons and shall be base
only on evidence.
(4) Parties to the preceding shall have an opportunity for review by a judicial authority of final
decision or if at least the legal aspects of initial judicial decision on the merits of a case.
Solution:
Types of IP Licensing Formats
There are basically three types of IP Licensing Formats:
Sole License:
No person other than the licensee and the owner has the rights to perform the activities
stipulated in the agreement. The owner may reserve certain rights for himself. For example: the
patent holder may keep certain product features for him to manufacture while to licensee he
may allow to manufacture similar product with limited features to mark the product
differentiation in the market.
Exclusive License:
No one other than the licensee (even the licensor) can perform the activities stipulated in the
agreement. Such a license could be worthwhile when an IP Owner does not want to exploit the
IP Themselves, as it may be possible to seek a higher royalty payment than for a non-exclusive
license. But IP over should be certain that they do not want to use the IP themselves before
agreeing to exclusive license.
Non-Exclusive License:
The owner of the IP is interested in making multiple copies of his creation and sell it to end users
who is licensed to use it. This happens in case of software, wherein the user who is licensee to
use the product, is restricted to make multiple copies of the same for selling or distributing.
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

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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:
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.
Criminal Remedies: [CBSGS: APR – 2017]
• The judicial authorities have the authority to order the infringer to pay the right holder in
form of compensation as damages have been occurred.
• In case of infringing cases if the right holder has suffered huge losses then the infringer not
only pays the fine but also is put in Jail for few years as per the judicial authorities.
• In order to create and provide effective decisions the judicial authorities shall order for the
goods that are found to be infringed.
• In case of 3rd
parties involved the judicial authorities take decision based on the interest of
these parties.
• In case of criminal procedures imprisonment and monetary fines need to be paid as a
penalty related to infringement cases of IPR particularly on commercial basis.
Civil Remedies: [CBSGS: OCT/APR – 2017]
• 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.

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• 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:
Implementation of Cyber Law in India
It compasses laws relating to,
(1) Cyber crimes
(2) Electronic and Digital Signatures
(3) Intellectual Property
(4) Data Protection and Privacy
 Cyber Crimes are unlawful acts when the computer is used either as a tool or a target or
both.
 Electronic signatures satisfy their Major Legal Requirements Signs Authentication, Message
Authentication and message integrity.
 Intellectual Property is refer to creations of the human mind e.g. a story, a song, a painting,
a design etc.
Solution:
Digital Contract
Contracts have become a common in daily life that most of the time we do not even realize that
we have entered into one Right form hiring a taxi to buying airline tickets online, innumerable
things in our daily lives are governed by contracts. The Indian Contract Act, 1872 governs the
manners in which contracts are made and executed in India. It governs the way in which the
provisions in a contract are implemented and codifies the effect of a breach of contractual
provision. Within the framework of the Act, parties are fee to contract on any terms they choose.
Indian Contract Act consist of limiting factors subject to which contract may be entered.
Solution:
Different Issues in the Cyber World
Cyber Privacy is mainly defined by the services used by individuals, whatever agreements
individuals agree to when they sign up for a service usually signs away their right to privacy. In
other cases, the reasonable expectation of privacy is not reasonable if the behaviors or
communications in question were knowingly exposed to public view.

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Crimes involving Cyber-Privacy:
• Cyber Privacy is a huge concern for civilians and especially for companies because for the
potential for crime.
• Malware (such as the use of malicious code which can compromise a user’s identity/and/or
information) Denial of service attires.
• Computer viruses (can compromise user information as well as identity)
• All these crimes fall under the category of fraud, identity theft, phishing scams and
information warfare. The cyber-privacy project attempts to noise public awareness and
promote the education of cyber privacy to prevent crimes from happening.
As it relates to Terrorism:
There has been an increase in cyber privacy related crimes since 2001 when the internet was
being used widespread across the country. Cyber terrorism is defined as an act of terrorism
committed through the use of cyber space or computer resources. As such a simple propaganda
in the internet that there will be bomb attacks during the holidays can be constructed as an act
of Cyber Terrorism. At its heights, it may use the internet or computer resources to carry out an
actual attacks.
Solution:
Copyright Issue In India AND Copyright In WWW:
• A website is an electronic expression of creator’s idea. The website contents include words,
graphics, pictures, audio, video that are meant for viewer, user an information. Everything
on website is protected by copyright law. However the degree of protection varies with
material.
• The task of maintaining, designing, producing a sophisticated task is very expensive one.
Hence, protecting them is extremely important.
• The subject matter of copyright is digital context is information which can be reproduced &
distributed at near zero cost without copyright protection, all information would be just
clarity.
• Copyright owner, alone has the right to reproduce the work. Copyright infringement in the
online environment often involves a violation of the reproduction right that occurs by
transferring data from one computer to another.
Solution:
Objectives of IT Act, 2000
The following are its main objectives and scope:
(1) It is objective of IT Act 2000 to give legal recognition to any transaction which is done by
electronic way or use of internet
(2) To give legal recognition to digital signature for accepting any agreement via computer.

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(3) To provide facility of filling document online relating to school admission or registration is
employment exchange.
(4) According to IT Act 2000, any company can store their data in electronic storage.
(5) To stop computer crime and protect privacy of internet users.
(6) To give legal recognition for keeping books of accounts by bankers and other companies
in electronic form.
(7) To make more power to IPO, RBI and Indian Evidence act for restricting electronic crime.
Solution:
Certifying Authority to issue Digital Signature Certificate:
• Any person may make an application to the Certifying Authority for the issue of a Digital
Signature Certificate in such form as may be prescribed by the Central Government.
• Every such application shall be accompanied by such fee not exceeding twenty-five
thousand rupees as may be prescribed by the Central Government, to be paid to the
Certifying Authority Provided that while prescribing fees under sub-section (2) different fees
may be prescribed for different classes of applications.
• Every such application shall be accompanied by a certification practice statement or where
there is no such statement, a statement containing such particulars, as may be specified by
regulations.
• On receipt of an application under sub-section (1), the Certifying Authority may, after
consideration of the Certification practice statement or the other statement under sub-
section (3) and after making such enquiries as it may deem fit, grant the Digital Signature
Certificate or for reasons to be recorded in writing reject the application.
• Provided that no Digital Certificate shall be granted unless the Certifying Authority is
satisfied that –
(i) The application holds the private key corresponding to the public key to be listed in the
Digital Signature Certificate.
(ii) The applicant holds a private key, which in capable of creating a digital signature.
(iii) The public key to be listed in the certificate can be used to verify a digital signature
affixed by the private key held by the applicant: provided further that no application
shall be reject unless the application has been given a reasonable opportunity of
showing cause an against the proposed rejection.
Solution:
Malaysian Approach to Cyber Laws
Cyber laws are the law used to control the behavior of computer users in the country. There are
currently four cyber laws which have been approved by the Government which as known as
Digital Signature Act, 1997.
Computer Crimes Act, 1997.

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Communication & Multimedia Act, 1998, by the implementation of Communication &
Telecommunication Act, 1998 ensures that information is secure, the network is safe, reliable &
the service is affordable all over Malaysian, you can also use this act for any cases regarding your
internet service provider & whether they got accused of part of this law.
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;

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(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
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.

20
(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-
(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:
Main Features of Copyright Act of 1957
(1) Creation of copyright office and a copyright board to facilitate registration of copyright and
to settle certain binds of a disputes arising under the act and for compulsory licensing of
copyright.
(2) Definition of various categories of work in which copyright sublists and the scope of the
rights conferred on the author under the act.
(3) Provisions to determine the first ownership of copyright in various categories of works.
(4) Term of copyright for different categories.
(5) Provisions relating to assignment of ownership and licensing including compulsory
licensing.
(6) Provision relating to performing rights.
(7) Broadcasting rights.
(8) International copyright.
(9) Exception to the exclusive rights conferred on the author or acts, which do not constitute
infringement.
Solution:
WIPO Treaty
In 1996, two treaties were adopted by more than 100 countries at WIPO –
WIPO Copyright Treaty (WCT), WIPO Performance & Phonograms Treaty (WPPT). These are
commonly known as Internet Treaties. The WIPO Internet Treaties are designed to update and
supplement the existing international treaties on copyrights & related rights.
The development of digital technology has raised following questions:

21
(1) How these rights apply in new environment when multiple copies are made at work,
traverses the new.
(2) Flow the reproduction rights are violated.
(3) Is there any communication to public when new work is not broadcasted but simply
available to individual member of the public?
• The basic right granted under copyright law is the right of reproduction.
• This right is also applicable in cyber space for transmission of work as it requires uploading
of work into the memory of computer or other digital devices.
• Before transmission to other networks or computers and exceptions permitted under digital
environment in particular to use of work in digital form.
• It is understood that storage of protected work in digital form in an electronic medium.
• On the internet material is transmitted interactively in demand from individual user.
• Treaty requires that an exclusive right to be grated to control such acts of “making available,
while leaving it to individual countries to decide how to categories this right under national
law.
• The technologies possess practical challenges in enforcement & management of digital
copyright in internet.
• Technologies adjoin which states that contracting parties shall provide adequate legal
protection & effective legal remedies.
• Second technologic adjoin, states that, the treaties should protect rights management
information providing legal support to right management system under WCT.
• These rights management information means information which identifies work & author
of work.
• Contracting parties shall provide adequate & effective legal remedies against any person
performing any of the act will civil remedies.
• For facing the treat of privacy, approach in the WIPO internet treaties. Supported by legal
measures against circumvention of such technology.
• The technological system protection includes anti-copy devices, access control, proprietary
viewer software encryption password protection & water marking.
• Several industry & technology initiates to set standards in various industries however none
has yet established uniform standard for technological protection measures.
Solution:
Copyright
The copyright in a work is a creation of statue. A person owns a copyright because the law
recognizes the existence of such a right.
Different Rights Conferred by Copyright
• In the case of a literary, dramatic or numerical work, not being a computer programme, it is
a right.
• To reproduce the work in any martial form including the storing of it in any medium by
electronic means.

22
• To issue copies of the work to the public not being copied already in circulation.
• To perform the work in public or communicate it to the public.
• To make any cinematograph film or sound recording in respect of work.
• To make translation of the work.
Solution:
Border Security Measures
The recognition of the need to protect of intellectual property with regard to counterfeit
trademark and pirated copyrighted goods, the enforcement of intellectual property rights at the
borders has emerged as a significant issue in recent times.
Border Measures under TRIPS:
India is a signatory to the WTO Treaty on Trade Related Aspects of Intellectual Property Rights
(TRIPS), which was bought into force on 1st
January, 1995. Articles 51 to 60 of TRIPS Agreement
[Annex 1C of the Marrakesh Agreement Establishing the World Trade Organization] relate to
border measures (i.e. measures required to be taken for providing protection against
infringement of IPRs at the border).
Under Articles 51 to 60 of the TRIPS Agreement, a WTO member is obliged to enact laws to fulfill
obligations relating to border measures by incorporating the following provisions, so far as
enforcement of IPRs at Border is connected.
 Suspension of Release: A provision, which allows a right holder to lodge an application with
customs to suspend release of suspected counterfeit goods.
 Application: Describes the conditions for making an application, Prima facie evidence of
infringement and a sufficiently detailed description of the goods.
 Security of Equivalent Assurance: Security to prevent abuse of the system by person making
the allegation of infringement.
 Notice of Suspension: Prompt notification by Customs to the rights holder of suspension.
 Duration of Suspension: 10 working days after the applicant has been served notice of the
suspension; time period for Right Holder to commerce legal proceedings.
 Indemnification of the Importer and of the Owner of the Goods: The applicant is liable to
pay compensation to the importer, the consignee and owner, compensation in case of
wrongful detention of goods.
 Right of Inspection and Information: The right holder, is given sufficient information and the
right to inspect detained goods, in order to substantiate the claim.
 Ex Officio Action: Optional provision, which allows Customs to act upon their own initiative,
without an application being required, in order to suspend clearance of goods. {Ex Officio
may have two distinct: (1). Customs intercepting a shipment on their own information, after
the right holder has already the recordal of their IPR. (2) Customs intercepting a shipment
on their own information, even if the right holder has not completed recordal.}
 Remedies: Order destruction of infringing goods. Re-exportation not allowed.
 De Minimus Imports: Small non-commercial consignments may be excluded.

23
While the mandatory obligations under Articles 51 to 60 of the TRIPS Agreement dealing with
border measures are restricted to Copyright and Trade Marks infringement only, the IPR
(imported goods) enforcement Rules, 2007 deal with Patents, Designs and Geographical
Indications violations as well, in conformity with the practice prevailing in some other countries,
notably EU countries.
Solution:
Conditions for applying Digital Signature
 Private companies and governments agencies all round the world make huge investments
for the automation of their processes and in the management of the electronic
documentation.
 The main requirement in the management of digital documentation is its equivalence, from
a legal perspective, to paperwork, affixing a signature on a Digital Document is the
fundamental principle on which are based the main processes of authorization and
validation, apart from the specific area of application.
 Main benefits for the introduction of digital signing processes are cost reduction and
complete automation of documental workflow, including authorization and validation
phases.
 In essence, Digital Signatures allow you to replace the approval process on paper, slow and
expensive, with a fully digital system, faster and cheaper.
 The digital signature is simply a procedure which guarantees the authenticity and integrity
of messages and documents exchanged and stored with computer tools, just as in traditional
handwritten signature for documents.
Conditions:
Essentially the digital signature of an electronic document aims to fulfill the following
requirements:
• That the recipient can verify the identity of sender (authenticity).
• That the sender cannot deny that he signed a document (non-repudiation)
A Typical Digital Signature Scheme consists of three Algorithms:
(1) An algorithm for generating the key that produces a key pair (PK, SK): PK (public key) is
the public key signature verification while SK (secret key) is the private key held by the
petitioner, used to sign the document.
(2) A signature algorithm which, taken as input a message m and a private key SK produces
a signature.
(3) A verification algorithm which, taken as input the message m, public key PK and a
signature, accepts or rejects the signature.
To generate a digital signature is necessary to use the digital asymmetric key pair, attributed
unequivocally to a person, called holder of the key pair:

24
The private key is known only by the owner, it is used to generate the digital signature for a
specific document.
The public key is used to verify the authenticity of the signature.
Once the document is signed with the private key, the signature can be verified successfully only
with the corresponding public key. Security is guaranteed by the impossibility to reconstruct the
private key (secret) from the public, even if the two keys are uniquely connected.
Solution:
Conditions Under which Intermediary Gets Exemption from Liability
The acts of transmission and of provision of access referred to in paragraph include the
automatic, intermediate & transient storage of the Information transmitted in so far as this
takes place for the sole purpose of carrying out the transmission in the communication network
& provided that the information is not stored for any period longer than is reasonably necessary
for the transmission. It is only for the ‘act of transmission’ or the ‘act of provision of access to a
communication network’. That the intermediary is given an exemption from liability by virtue of
the mere conduit principle. Other acts such as long term storage of information are not covered
by the mere conduit principle. But in the Indian Context, by excluding the precondition to the
three disqualifiers, any act which is completely unrelated to transmission or provision of access
would automatically escape the three codified disqualifiers & being the intermediary one step
closer towards claiming exemption from liability.
***

IPR & Cyber Laws (April - 2017) [CBSGS - Paper Solution]

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IPR & Cyber Laws (April - 2017) [CBSGS - Paper Solution]