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Chapter-1

INTRODUCTION TO CYBER CRIME 1.1 GENERAL INTRODUCTION TO CYBER CRIME

The first recorded cyber crime took place in the year 1820! That is not surprising considering the fact that the abacus, which is thought to be the earliest form of a computer, has been around since 3500 B.C. in India, Japan and China. The era of modern computers, however, began with the analytical engine of Charles Babbage. In 1820, Joseph-Marie Jacquard, a textile manufacturer in France, produced the loom. This device allowed the repetition of a series of steps in the weaving of special fabrics. This resulted in a fear amongst Jacquard's employees that their traditional employment and livelihood were being threatened. They committed acts of sabotage to discourage Jacquard from further use of the new technology. This is the first recorded cyber crime! Today computers have come a long way, with neural networks and nano-computing promising to turn every atom in a glass of water into a computer capable of performing a Billion operations per second. Cyber crime is an evil having its origin in the growing dependence on computers in modern life. In a day and age when everything from microwave ovens and refrigerators to nuclear power plants is being run on computers, cyber crime has assumed rather sinister implications. Major Cyber crimes in the recent past include. The Citibank rip off. US $ 10 million were fraudulently transferred out of the bank and into a bank account in Switzerland. A Russian hacker group led by Vladimir Kevin, a renowned hacker, perpetrated the attack. The group compromised the bank's security systems. Vladimir was allegedly using his office computer at AO Saturn, a computer firm in St. Petersburg, Russia, to break into Citibank computers. He was finally arrested on Heat throw airport on his way to Switzerland. 1.1.1 Defining Cyber Crime: Offences that are committed against individuals or groups of individuals with a criminal motive to intentionally harm the reputation of the victim or cause physical or mental harm to the victim directly or indirectly, using modern telecommunication networks such as Internet (Chat rooms, emails, notice boards and groups) and mobile phones (SMS/MMS)". Such crimes may threaten a nations security and financial health. Issues surrounding these types of crime have become high-profile, particularly those surrounding cracking, copyright infringement, child pornography, and child grooming. There are also problems of privacy when confidential information is lost or intercepted, lawfully or otherwise.

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1.1.2 Some Examples Of Cyber Crime Financial crimes This would include cheating, credit card frauds, money laundering etc. To cite a recent case, a website offered to sell Alphonso mangoes at a throwaway price. Distrusting such a transaction, very few people responded to or supplied the website with their credit card numbers. These people were actually sent the Alphonso mangoes. The word about this website now spread like wildfire. Thousands of people from all over the country responded and ordered mangoes by providing their credit card numbers. The owners of what was later proven to be a bogus website then fled taking the numerous credit card numbers and proceeded to spend huge amounts of money much to the chagrin of the card owners. Cyber pornography This would include pornographic websites. pornographic magazines produced using computers (to publish and print the material) and the Internet (to download and transmit pornographic pictures, photos, writings etc). Recent Indian incidents revolving around cyber pornography include the Air Force Balbharati School case. A student of the Air Force Balbharati School, Delhi, was teased by all his classmates for having a pockmarked face. Tired of the cruel jokes, he decided to get back at his tormentors. He scanned photographs of his classmates and teachers, morphed them with nude photographs and put them up on a website that he uploaded on to a free web hosting service. It was only after the father of one of the class girls featured on the website objected and lodged a complaint with the police that any action was taken. Sale of illegal articles This would include sale of narcotics, weapons and wildlife etc., by posting information on websites, auction websites, and bulletin boards or 167 simply by using email communication. E.g. many of the auction sites even in India are believed to be selling cocaine in the name of 'honey'. Online gambling There are millions of websites. all hosted on servers abroad, that offer online gambling. In fact, it is believed that many of these websites are actually fronts for money laundering. Intellectual Property crimes These include software piracy, copyright infringement, trademarks violations, theft of computer source code etc. Email spoofing

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A spoofed email is one that appears to originate from one source but actually has been sent from another source Email spoofing can also cause monetary damage. In an American case, a teenager made millions of dollars by spreading false information about certain companies whose shares he had short sold. This misinformation was spread by sending spoofed emails, purportedly from news agencies like Reuters, to share brokers and investors who were informed that the companies were doing very badly. Even after the truth came out the values of the shares did not go back to the earlier levels and thousands of investors lost a lot of money. Forgery Counterfeit currency notes, postage and revenue stamps, mark sheets etc can be forged using sophisticated computers, printers and scanners. Outside many colleges across India, one finds touts soliciting the sale of fake mark sheets or even certificates. These are made using computers, and high quality scanners and printers. In fact, this has becoming a booming business involving thousands of Rupees being given to student gangs in exchange for these bogus but authentic looking certificates. Cyber Defamation This occurs when defamation takes place with the help of computers and / or the Internet. E.g. someone publishes defamatory matter about someone on a website or sends e-mails containing defamatory information to all of that person's friends. Cyber stalking The Oxford dictionary defines stalking as "pursuing stealthily". Cyber stalking involves following a person's movements across the Internet by posting messages (sometimes threatening) on the bulletin boards frequented by the victim, entering the chat-rooms frequented by the victim, constantly bombarding the victim with emails etc. 1.1.3 Frequently Used Cyber Crimes Unauthorized access to computer systems or networks This activity is commonly referred to as hacking. The Indian law has however given a different connotation to the term hacking, so we will not use the term "unauthorized access" interchangeably with the term "hacking". Theft of information contained in electronic form This includes information stored in computer hard disks, removable storage media etc. Email bombing

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Email bombing refers to sending a large number of emails to the victim resulting in the victim's email account (in case of an individual) or mail servers (in case of a company or an email service provider) crashing. In one case, a foreigner who had been residing in Simla, India for almost thirty years wanted to avail of a scheme introduced by the Simla Housing Board to buy land at lower rates. When he made an application it was rejected on the grounds that the 169 schemes were available only for citizens of India. He decided to take his revenge. Consequently he sent thousands of mails to the Simla Housing Board and repeatedly kept sending e-mails till their servers crashed. Data diddling This kind of an attack involves altering raw data just before it is processed by a computer and then changing it back after the processing is completed. Electricity Boards in India have been victims to data diddling programs inserted when private parties were computerizing their systems. Salami attacks These attacks are used for the commission of financial crimes. The key here is to make the alteration so insignificant that in a single case it would go completely unnoticed. E.g. a bank employee inserts a program, into the bank's servers, that deducts a small amount of money (say Rs. 5 a month) from the account of every customer. No account holder will probably notice this unauthorized debit, but the bank employee will make a sizable amount of money every month. Denial of Service attack This involves flooding a computer resource with more requests than it can handle. This causes the resource (e.g. a web server) to crash thereby denying authorized users the service offered by the resource. Another variation to a typical denial of service attack is known as a Distributed Denial of Service (DDoS) attack wherein the perpetrators are many and are geographically widespread. It is very difficult to control such attacks. The attack is initiated by sending excessive demands to the victim's computer(s), exceeding the limit that the victim's servers can support and making the servers crash. Denial-of-service attacks have had an impressive history having, in the past, brought down websites like Amazon, CNN, Yahoo and eBay! Virus / worm attacks Viruses are programs that attach themselves to a computer or a file and then circulate themselves to other files and to other computers on a network. They usually affect the data on a computer, either by altering or deleting it. Worms, unlike viruses do not need the host to attach themselves to. They merely make functional copies of themselves and do this repeatedly till they

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eat up all the available space on a computer's memory selects certain files and then inserts its own code in lieu of the original data contained in the file. This way it creates ever-increasing versions of itself. Probably the world's most famous worm was the Internet worm let loose on the Internet by Robert Morris sometime in 1988. Logic bombs These are event dependent programs. This implies that these programs are created to do something only when a certain event (known as a trigger event) occurs. E.g. even some viruses may be termed logic bombs because they lie dormant all through the year and become active only on a particular date (like the Chernobyl virus). Trojan attacks A Trojan as this program is aptly called, is an unauthorized program which functions from inside what seems to be an authorized program, thereby concealing what it is actually doing. There are many simple ways of installing a Trojan in someone's computer. To cite and example, two friends Rahul and Mukesh (names changed), had a heated argument over one girl, Radha (name changed) whom they both liked. When the girl, asked to choose, chose Mukesh over Rahul, Rahul decided to get even. On the 14th of February, he sent Mukesh a spoofed ecard, which appeared to have come from Radha's mail account. The e-card actually contained a Trojan. As soon as Mukesh opened the card, the Trojan was installed on his computer. Rahul now had complete control over Mukesh's computer and proceeded to harass him thoroughly. Internet time thefts This connotes the usage by an unauthorized person of the Internet hours paid for by another person. In a case reported before the enactment of the Information Technology Act, 2000 Colonel Bajwa, a resident of New Delhi, asked a nearby net caf owner to come and set up his Internet connection. For this purpose, the net caf owner needed to know his username and password. After having set up the connection he went away with knowing the present username and password. He then sold this information to another net caf. One week later Colonel Bajwa found that his Internet hours were almost over. Out of the 100 hours that he had bought, 94 hours had been used up within the span of that week. Web jacking This occurs when someone forcefully takes control of a website (by cracking the password and later changing it). The actual owner of the website does not have any more control over what appears on that website. Theft of computer system

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This type of offence involves the theft of a computer, some part(s) of a computer or a peripheral attached to the computer. Physically damaging a computer system This crime is committed by physically damaging a computer or its peripherals.

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Chapter 2

COPYRIGHT
2.1 GENERAL INTRODUCTION Copyright is a property right that subsists in a number of works. It is not necessary to register copyright it arises automatically. The copyright work must be in a material form, however, in order to be protected - copyright is not a right in ideas, it protects the expression of an idea. The Copyright, Designs and Patents Act (CDPA) 1988 gives authors certain economic and moral rights in their works. Copyright subsists in the following works: Original literary works (including computer software) Original musical works Original artistic works Original dramatic works Films Sound recordings Broadcasts, including broadcasts by wire or cable. Typographical arrangements of published editions

It should be noted that in the United Kingdom the lyrics of a song and the musical score are protected separately being literary and musical works respectively. 2.1.1 How long does copyright protection last? Copyright in original musical, literary, dramatic and artistic works lasts until 70 years after the death of the author. The copyright in films also lasts for 70 years after the death of the last to survive of the principal director, author of the screenplay and dialogue and the composer of the music created specifically for the film. Copyright protection in sound recordings and broadcasts exists for 50 years from the end of the calendar year in which it was made or released. Copyright in the typographical arrangement of published editions exists for 25 years from first publication. Where the work has originated from outside the European Economic Area (EEA) or the author is not an EEA national the situation is slightly different. In this situation the copyright will generally last for as long as the work attracts copyright protection in the country of origin (usually the country where the work is first published) or if not published, the author's national country as long as that period does not exceed the period for which UK copyright law protects works of EEA origin. 2.1.1.1 Authorship and Ownership of Copyright

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Authorship The author of a copyright work is generally the person who creates it. In relation to sound recordings this is the producer. In films the principal director and producer are joint authors. The author of a broadcast is the person who made it. Finally the publisher of a typographical arrangement of a published edition is the author of it. Where two or more people collaborate in creating a work and their individual contributions are not distinct they are joint authors of that work. So where two or more persons do collaborate but it is possible to determine the separate parts attributable to each author it will not be a work of joint authorship. Ownership Generally the author of the work is the first owner of copyright and therefore those people mentioned above are also the first owners. If a literary, musical, dramatic, artistic work or film is made in the course of employment, however, the employer is the first owner of the copyright, unless there is any agreement to the contrary. It is important to distinguish ownership of a physical product with the ownership of the copyright embodied within it. For example the purchase of a CD does not mean that the purchaser owns the copyright in the musical or literary work within it or the copyright in the sound recording. Therefore purchasing a CD alone does not entitle the purchaser to copy the work or do any other acts which are restricted to the copyright owner.

2.2 Rights of a Copyright Owner

2.2.1 Economic Rights The economic rights of a copyright owner are expressed in the Copyright Designs and Patents Act (CDPA) 1988 as a series of 'restricted acts' that only the copyright owner can do or authorise. These are: To copy a work To distribute copies of a work To rent or lend a work To perform, show or play a work in public To communicate a work to the public (which is any electronic transmission and includes broadcasting) To adapt a work (and all the other acts with that new work) All these rights include the right to do any of these acts with a substantial part of the work. this is assessed qualitatively and therefore can be a very small part of a work if it is distinctive. 2.2.2 Moral Rights

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The author of a copyright literary, dramatic, musical or artistic work and the principal director of a film have the following moral rights in relation to their work: Paternity right - The right to be identified as the author, such as having his name printed on his work. The right has to be asserted by the author in order to have effect. False attribution - A person has the right not to have a work, which they have not created, falsely attributed to him. Integrity Right - The author has the right not to have his work subjected to derogatory treatment, he can object to any distortion or mutilation of his work prejudicial to his honor or reputation or of a director. There is a further moral right which is not granted to an author of a work: Privacy in photographs-This is a very specific moral right and relates to the situation where a private photograph has been commissioned for private and domestic purposes. In such a situation the copyright of the photograph will vest in the photographer, but this moral right allows the subject of the photograph to prevent any general distribution, exhibition or communication of it. Generally moral rights exist for as long as copyright exists in the work, with the exception of false attribution which lasts until 20 years after a persons death. Moral rights may be waived but cannot be assigned and so do not pass with any assignment or license of the copyright.

2.3 Dealing with Copyright

There are essentially two ways in which the copyright owner can deal with his copyright. Firstly, by assignment and secondly by licensing. 2.3.1 Assignment Copyright is a property right and therefore like physical property it can be assigned. Assignment is akin to selling all or part of the copyright. It is possible for the copyright owner to assign his copyright in its entirety to another party. However, it is also possible to assign merely one part of the copyright, such as the right to copy, and the assignment may be further limited in that the assignment may only be for a certain period of time. Assignment may also take place by will in the same way as any other personal property. To be valid, any assignment of copyright must be made in writing and signed by or on behalf of the copyright owner. 2.3.2 Future Assignment The Copyright, Designs and Patents Act 1988 allows a copyright owner to agree to assign the copyright in works that he will create in the future. When such works come into existence they will automatically transfer to the assignee in the agreement. The ability to assign copyright in future works is particularly useful in relation to members of The Performing Right Society (PRS for Music) as it ensures that they do not have to make a separate agreement to assign their rights to PRS each time they create a new work. 2.3.3 Licensing and Exclusive Licenses

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It is possible to license a right instead of assigning it. In granting a license the copyright owner merely gives another person permission to use that right for the particular purpose as agreed in the license terms. Licensing is more flexible than assignment as it is possible to license many people to use copyright simultaneously (a non-exclusive license). Licenses can be limited as to what can be done and can be limited in time. It is also possible to give an 'exclusive license'. This means the copyright owner grants a person permission to exercise a particular right exclusively (even to the exclusion of the copyright owner themselves). An exclusive license can be limited in the rights given and the time period. An exclusive license must be in writing and signed by or on behalf of the copyright owner granting the license.

2.4 Permitted Acts

The Copyright, Designs and Patents Act 1988 allows a number of uses of copyright works without the permission of the copyright owner in certain specific circumstances. There are two distinct types of permitted acts, fair dealing and exceptions. 2.4.1 Fair Dealing The fair dealing exceptions are fairly limited and exist for the purposes of: Non-commercial research and private study Criticism and review Reporting current events

Fair dealing acts differ from other exceptions to copyright in that these involve an assessment as to whether the dealing is fair. In determining this issue the courts have generally considered three main questions. First is the person really using the work for the stated purpose? For example, if an entire work has been used and it is followed by two lines of vague review this is will not constitute use for the purpose of criticism and review. If the use has not been for one of the stated purposes it will not fall within fair dealing and as such any use without permission will be an infringement. If the work has been used for one of stated purposes the court will then consider whether the use of the work was fair in all the circumstances. Such an assessment will involve a number of factors and will depend upon the particular circumstances of each case. Finally in order to benefit from a fair dealing exception a sufficient acknowledgement must accompany the work (with the exception of reporting current events by means of sound recording film or broadcast). This means that there must be a visible notice demonstrating the claim that the copyright owner has to his work. 2.4.2 Exceptions There are also a number of general exceptions in the Copyright Act for a variety of purposes. Broadly these are:

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Educational exceptions - exceptions in relation to specific acts taking place in teaching and educational establishments. Library and archiving exceptions - exceptions relating to various aspects of libraries and archiving, such as. libraries make copies for use in non-commercial research, or for archiving material. Public administration - exceptions relating to various parliamentary/judicial functions and public information, such as reporting legal cases. Incidental inclusion of the copyright work - this exception relates to the situation where for example a documentary is being filmed and incidentally includes a passing car playing copyright music or a building or sculpture which is a copyright work. These incidental inclusions would be excepted from copyright liability. However, the Copyright, Designs and Patents Act 1988 provides that where music is in fact deliberately included, it will not be possible for a person to claim incidental inclusion. Lawful use of a computer program/database - a person who is lawfully using a computer program or database is allowed to make back-up copies and in certain circumstances de-compile programs, however, it must be noted this is only where the initial use is lawful. Time shifting - a limited exception is allowed so that a person in private and domestic circumstances can copy a broadcast (and the copyright works embodied in it) to watch or listen to at a more convenient time.

2.5 Remedies
If a person carries out one of the restricted acts without the copyright owners permission, the copyright owner is able to take action for infringement. It should be noted here that an exclusive licensee has the same right as the copyright owner in this respect and therefore can also take action for copyright infringement. There are a number of remedies that the copyright owner can obtain from the Court in a civil action for copyright infringement. These are: Injunctions - this is a very important remedy as it allows the copyright owner to get a court order prohibiting any further infringement. Damages - in any action for copyright infringement it is possible for the copyright owner to obtain damages for his loss. This is often based on what would have been a reasonable licence fee. In the event that the infringement has been particularly flagrant he will be able to get punitive damages in addition to the basic amount. As an alternative, a copyright owner can elect to have an account of the infringers profit. Order for 'delivery up' of infringing articles - the Court can order that the infringing party deliver all infringing articles into Court so that he no longer has them in his possession.

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TRADEMARK Right to seize infringing copies - it is possible for the copyright owner after informing the police to seize infringing copies. The MCPS Anti-piracy Unit conduct raids on suspected parties to seize illegal product, such as counterfeit or pirate CDs.

2.6 Criminal Offences

A number of acts conducted without the copyright owner's permission are classified as criminal offences. These are: use Possessing an infringing article in course of business with a view to committing any act infringing copyright Selling, letting for hire, offering/exposing for sale or hire, exhibiting in public, or distributing an infringing article in the course of business Distributing an infringing article not in the course of business but to such an extent as to prejudice the copyright owner, for example, a large number of infringing copies are given away free therefore affecting the copyright owner's revenue Making/possessing an article specifically designed for making copies of a copyright work Communicating a work to the public in the course of a business or in such a way as to prejudicially affect the copyright owner. Causing an infringing public performance of a literary, dramatic or musical work Causing an infringing public showing of a sound recording or films Circumventing technological measures or removing or altering electronic rights management information or dealing in devices meant for that purpose. A person commits an offence if they knew or had reason to believe that they were conducting any of these acts with an infringing article or that their actions would cause an infringement. These offences carry varying levels of possible punishment including fines and/or imprisonment with, for certain cases, a maximum term of imprisonment of ten years. In these cases, it is possible to apply to a Court to obtain a search warrant in order to seize infringing articles. It is also possible for the plaintiff to get an order for delivery up of infringing articles in criminal proceedings as is the case in civil proceedings. The infringing articles may also be destroyed. A company can be guilty of copyright infringement. Furthermore, it is shown that the offence has been committed with the consent or connivance of a director, manager, secretary or Making an infringing article for sale or hire Importing an infringing article into the UK other than for private and domestic

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other similar officer of that company that person, as well as the company will be liable for the offence.

2.7 MCPS and Copyright

MCPS is a music industry collecting society acting on behalf of the vast majority of those who own, control or administer the copyright subsisting in musical works. MCPS represents composers and music publishers in the UK and also sister collecting societies overseas by virtue of reciprocal agreements. The members of MCPS do not assign their rights to the Society. MCPS acts as an exclusive agent for its members. The basis of MCPS authority derives from the Membership Agreement the agreement between the member and MCPS. In the Membership Agreement a mandate is conferred upon MCPS to administer the following rights:

To copy the work To issue copies of the work to the public To rent or lend the work to the public

These rights are known as mechanical rights although this is not a term used in the Copyright, Designs and Patents Act (CDPA) 1988 or the Membership Agreement. MCPS acts in a number of different ways according to the authority given to it by its members. In several areas, such as licensing record companies for the reproduction of musical works into sound recordings, MCPS acts exclusively for all members. In some specific areas MCPS can only grant a license where the member has given MCPS a specific mandate to do so, for example music used in videos or television advertisements. MCPS licenses others for a particular use of a work or a catalogue in return for a royalty, which after deducting a commission it allocates and distributes to its members.

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Chapter 3

INTELLECTUAL PROPERTY RIGHTS 3.1 GENERAL INRODUCTION

Intellectual property, very broadly, means the legal rights which result from intellectual activity in the industrial, scientific, literary and artistic fields. Countries have laws to protect intellectual property for two main reasons. One is to give statutory expression to the moral and economic rights of creators in their creations and the rights of the public in access to those creations. The second is to promote, as a deliberate act of Government policy, creativity and the dissemination and application of its results and to encourage fair trading which would contribute to economic and social development. Generally speaking, intellectual property law aims at safeguarding creators and other producers of intellectual goods and services by granting them certain time-limited rights to control the use made of those productions. Those rights do not apply to the physical object in which the creation may be embodied but instead to the intellectual creation as such. Intellectual property is traditionally divided into two branches, industrial property and copyright. The Convention Establishing the World Intellectual Property Organization (WIPO), concluded in Stockholm on July 14, 1967 (Article 2(viii)) provides that intellectual property shall include rights relating to: - Literary, artistic and scientific works, - Performances of performing artists, phonograms and broadcasts, - Inventions in all fields of human endeavor, - Scientific discoveries, - Industrial designs, - Trademarks, service marks and commercial names and designations, - Protection against unfair competition, and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields. The areas mentioned as literary, artistic and scientific works belong to the copyright branch of intellectual property. The areas mentioned as performances of performing artists, phonograms and broadcasts are usually called related rights, that is, rights related to copyright. The areas mentioned as inventions, industrial designs, trademarks, service marks and commercial names and designations constitute the industrial property branch of intellectual property. The area mentioned as protection against unfair competition may also be considered as belonging to that branch, the more so as Article 1(2) of the Paris Convention for the Protection of Industrial Property (Stockholm Act of 1967) (the Paris Convention) includes the repression of unfair competition among the areas of the protection of industrial property. the said Convention

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TRADEMARK states that any act of competition contrary to honest practices in industrial and commercial matters constitutes an act of unfair competition The expression industrial property covers inventions and industrial designs. Simply stated, inventions are new solutions to technical problems and industrial designs are aesthetic creations determining the appearance of industrial products. In addition, industrial property includes trademarks, service marks, commercial names and designations, including indications of source and appellations of origin, and protection against unfair competition. Here, the aspect of intellectual creationsalthough existentis less prominent, but what counts here is that the object of.

3.2 WORLD INTELLECTUAL PROPERTY ORGANIZATION (WIPO)

3.2.1 History The World Intellectual Property Organization (WIPO) is one of the specialized agencies of the United Nations (UN) system of organizations. The Convention Establishing the World Intellectual Property Organization was signed at Stockholm in 1967 and entered into force in 1970. Initially there were two secretariats (one for industrial property, one for copyright) for the administration of the two conventions, but in 1893 the two secretariats united. The most recent name of the organization, before it became WIPO, was BIRPI, the acronym of the Frenchlanguage version of the name: United International Bureaux for the Protection of Intellectual Property (in English). In 1960, BIRPI moved from Berne to Geneva. At the 1967 diplomatic conference in Stockholm, when WIPO was established, the administrative and final clauses of all the then existing multilateral treaties administered by BIRPI were revised. They had to be revised because member States wished to assume the position of full governing body of the Organization (WIPO), thus removing the supervisory authority of the Swiss. Most of the intergovernmental organizations now called specialized agencies did not exist before the Second World War. They were created for the specific purpose of dealing with a particular subject or field of activity at the international level.

3.3 PATENTSWHAT IT Is
A Patent is an intellectual property right relating to inventions and is the grant of exclusive right, for limited period, provided by the Government to the patentee, in exchange of full disclosure of his invention, for excluding others, from making, using, selling, importing the patented product or process producing that product for those purposes. The purpose of this system is to encourage inventions by promoting their protection and utilization so as to

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contribute to the development of industries, which in turn, contributes to the promotion of technological innovation and to the transfer and dissemination of technology. Under the system, Patents ensure property a right (legal title) for the invention for which patent has been granted, which may be extremely valuable to an individual or a Company. One should make the fullest possible use of the Patent System and the benefits it provides. Patent right is territorial in nature and a patent obtained in one country is not enforceable in other country. The inventors/their assignees are required to file separate patent applications in different countries for obtaining the patent in that country. 3.3.1 LEGISLATION The Patent System in India is governed by the Patents Act, 1970 (No. 39 of 1970) as amended by the Patents (Amendment) Act, 2005 and the Patents Rules, 2003, as amended by the Patents (Amendment) Rules 2006 effective from 05-05-2006. 3.3.2 ADMINISTRATION The Patent Office, under the Department of Industrial Policy & Promotion, Ministry of Commerce & Industry, performs the statutory duties in connection with the grant of patents for new inventions and registration of industrial designs. Patent Offices are located at Kolkata, Mumbai, Chennai and Delhi to deal with the applications for patents originating within their respective territorial jurisdictions. 3.3.3 TYPES OF PATENT APPLICATIONS a) Ordinary Application b) Application for Patent of Addition (granted for Improvement or Modification of the already patented invention, for an unexpired term of the main patent). c) Divisional Application (in case of plurality of inventions disclosed in the main application). d) Convention application, claiming priority date on the basis of filing in Convention Countries. e) National Phase Application under PCT. 3.3.4 WHO MAY APPLY The inventor may make an application, either alone or jointly with another, or his/their assignee or legal representative of any deceased inventor or his assignee. 3.3.5 WHAT IS PATENTABLE INVENTION

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A new product or process, involving an inventive step and capable of being made or used in an industry. It means the invention to be patentable should be technical in nature and should meet the following criteria 3 i) Novelty: The matter disclosed in the specification is not published in India or elsewhere before the date of filing of the patent application in India. ii) Inventive Step: The invention is not obvious to a person skilled in the art in the light of the prior publication/knowledge/ document. iii) Industrially applicable: Invention should possess utility, so that it can be made or used in an industry. 3.3.6 WHAT IS NOT PATENTABLE The following are Non-Patentable inventions within the meaning of the Act: (a) An invention which is frivolous or which claims anything obviously contrary to well established natural laws. (b) an invention the primary or intended use or commercial exploitation of which could be contrary to public order or morality or which causes serious prejudice to human, animal or plant life or health or to the environment. (c) the mere discovery of a scientific principle or the formulation of an abstract theory (or discovery of any living thing or non-living substances occurring in nature). (d) the mere discovery of a new form of a known substance which does not result in the enhancement of the known efficacy of that substance or the mere discovery of any new property or mere new use for a known substance or of the mere use of a known process, machine or apparatus unless such known process results in a new product or employs at least one new reactant. Explanation - For the purposes of this clause, salts, esters, ethers, polymorphs, metabolites, pure form, particle size, isomers, mixtures of isomers, complexes, combinations and other derivatives of known substance shall be considered to be the same substance, unless they differ significantly in properties with regard to efficacy. (e) a substance obtained by a mere admixture resulting only in the aggregation of the properties of the components thereof or a process for producing such substance. (f) the mere arrangement or re-arrangement or duplication of known devices each functioning independently of one another in a known way. (g) a method of agriculture or horticulture. (h) any process for the medicinal, surgical, curative, prophylactic, diagnostic, therapeutic or other treatment of human beings or any process for a similar treatment of animals to render them free of disease or to increase their economic value or that of their products.

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(i) plants and animals in whole or any part thereof other than micro-organisms but including seeds, varieties and species and essentially biological processes for production or propagation of plants and animals. (j) a mathematical or business method or a computer programme per se or algorithms. (k) a literary, dramatic, musical or artistic work or any other aesthetic creation whatsoever including cinematographic works and television productions. (l) a mere scheme or rule or method of performing mental act or method of playing game. 3.3.7 APPROPRIATE OFFICE FOR FILING AN APPLICATION & FOR OTHER PROCEEDINGS Application is required to be filed according to the territorial limits where the applicant or the first mentioned applicant in case of joint applicants, for a patent normally resides or has domicile or has a place of business or the place from where the invention actually originated. If the applicant for the patent or party in a proceeding having no business place or domicile in India, the appropriate office will be according to the address for service in India given by the applicant or party in a proceeding . The appropriate office once decided in respect of any proceedings under the Act shall not ordinarily be changed. The four patent offices are located at Kolkata, Mumbai, Delhi & Chennai.

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Chapter -4

TRADEMARK 4.1 TRADEMARK GENERAL INTRODUCTION

A trademark is typically a name, word, phrase, logo, symbol, design, image, or a combination of these elements.There is also a range of non-conventional trademarks comprising marks which do not fall into these standard categories, such as those based on color, smell, or sound. The owner of a registered trademark may commence legal proceedings for trademark infringement to prevent unauthorized use of that trademark. However, in some countries unregistered rights in a sign may also be enforced. These are often known as 'common law' rights. An unregistered sign is usually only protected within the geographical area within which it has been used or in geographical areas into which it may be reasonably expected to expand. The term trademark is also used informally to refer to any distinguishing attribute by which an individual is readily identified, such as the well-known characteristics of celebrities. When a trademark is used in relation to services rather than products, it may sometimes be called a service mark, particularly in theUnited States 4.1.1 What is a trademark or service mark? A trademark is a word, phrase, symbol, or design, or a combination thereof, that identifies and distinguishes the source of the goods of one party from those of others. A service mark is the same as a trademark, except that it identifies and distinguishes the source of a service rather than goods. Throughout this booklet, the terms trademark and mark refer to both trademarks and service marks. 4.1.2 Trademarks, Copyrights, and Patents protect are same things or not No. Trademarks, copyrights, and patents protect different types of intellectual property. A trademark typically protects brand names and logos used on goods and services. A copyright protects an original artistic or literary work. A patent protects an invention. For example, if you invent a new kind of vacuum cleaner, you would apply for a patent to protect the invention itself. You would apply to register a trademark to protect the brand name of the vacuum cleaner. And you might register a copyright for the TV commercial that you use to market the product.

4.2 SHOULD I REGISTER MY MARK?

4.2.1 Is registration of my mark required?

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No. You can establish rights in a mark based on use of the mark in commerce, without a registration. However, owning a federal trademark registration on the Principal Register provides several advantages, including: Public notice of your claim of ownership of the mark. A legal presumption of your ownership of the mark and your exclusive right to use the mark nationwide on or in connection with the goods/services listed in the registration. The ability to bring an action concerning the mark in federal court. The use of the U.S. registration as a basis to obtain registration in foreign countries. The ability to record the U.S. registration with the U.S. Customs and Border Protection (CBP) Service to prevent importation of infringing foreign goods. The right to use the federal registration symbol . and Listing in the United States Patent and Trademark Offices online databases. 4.2.2 When can I use the trademark symbols TM, SM, and ? If you claim rights to use a mark, you may use the TM (trademark) or SM (service mark) designation to alert the public to your claim of ownership of the mark, regardless of whether you have filed an application with the United States Patent and Trademark Office (USPTO). However, you may only use the federal registration symbol after the USPTO actually registers a mark, and not while an application is pending. You may only use the registration symbol with the mark on or in connection with the goods/services listed in the federal trademark registration. Note: Several foreign countries use to indicate that a mark is registered in that country. Use of the symbol by the holder of a foreign registration may be proper.

4.3 HISTORY OF TRADEMARKS

In trademark treatises it is usually reported that blacksmiths who made swords in the Roman Empire are thought of as being the first users of trademarks. Other notable trademarks that have been used for a long time include Lwenbru, which claims use of its lion mark since 1383,and Stella Artois, which claims use since 1366. Registered trademarks involve registering the trademark with the government. The oldest registered trademarks in various countries include:

United Kingdom: 1876 The Bass Brewerys Red Triangle for ale was the first trademark to be registered under the Trade Mark Registration Act 1875.

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United States: 1884 A picture of Samson wrestling a lion was registered to J.P. Tolman Company.

In 1980, there were fewer than ten thousand registered high tech trademarks in the United States. In 2011, there are more than 300,000.

4.4 REGISTRATION
The law considers a trademark to be a form of property. Proprietary rights in relation to a trademark may be established through actual use in the marketplace, or through registration of the mark with the trademarks office (or "trademarks registry") of a particular jurisdiction . In some jurisdictions, trademark rights can be established through either or both means. Certain jurisdictions generally do not recognize trademarks rights arising through use. If trademark owners do not hold registrations for their marks in such jurisdictions, the extent to which they will be able to enforce their rights through trademark infringement proceedings will therefore be limited. In cases of dispute, this disparity of rights is often referred to as "first to file" as opposed to "first to use." Other countries such as Germany offer a limited amount of common law rights for unregistered marks where to gain protection, the goods or services must occupy a highly significant position in the marketplace where this could be 40% or more market share for sales in the particular class of goods or services. In the United States the registration process entails several steps prior to a trademark receiving its Certificate of Registration. First, an Applicant, the person or persons applying for the registration, files an application to register the respective trademark. The application is then placed in line in the order it was received to be examined by an examining attorney for the U.S. Patent and Trademark Office. Second, following a period of anywhere from three to six months the application is reviewed by an examining attorney to make sure it complies with all requirements in order to be entitled to registration. This review includes procedural matters such as making sure the applicant's goods or services are identified properly. It also includes more substantive matters such as making sure the applicant's mark is not merely descriptive or likely to cause confusion with a pre-existing applied-for or registered mark.[10] If the application runs afoul of any requirement, the examining attorney will issue an office action requiring the applicant to address certain issues or refusals prior to registration of the mark. Third, and after the examination of the mark has concluded with no issues to be addressed or an applicant has responded adequately to an examining attorney's concerns, the application will be published for opposition. During this 30-day period third-parties who may be affected by the registration of the trademark may step forward to file an Opposition Proceeding to stop the registration of the mark. If an Opposition proceeding is filed it institutes

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a case before the Trademark Trial and Appeal Board to determine both the validity of the grounds for the opposition as well as the ability of the applicant to register the mark at issue. Fourth, provided that no third-party opposes the registration of the mark during the opposition period or the opposition is ultimately decided in the applicant's favor the mark will be registered in due course. Outside of the United States the registration process is substantially similar to that found in the U.S. save for one notable exception in many countries: registration occurs prior to the opposition proceeding. In short, once an application is reviewed by an examiner and found to be entitled to registration a registration certificate is issued subject to the mark being open to opposition for a period of typically 6 months from the date of registration. A registered trademark confers a bundle of exclusive rightsupon the registered owner, including the right to exclusive use of the mark in relation to the products or services for which it is registered. The law in most jurisdictions also allows the owner of a registered trademark to prevent unauthorized use of the mark in relation to products or services which are identical or "colourfully" similar to the "registered" products or services, and in certain cases, prevent use in relation to entirely dissimilar products or services. The test is always whether a consumer of the goods or services will be confused as to the identity of the source or origin. An example may be a very large multinational brand such as "Sony" where a non-electronic product such as a pair of sunglasses might be assumed to have come from Sony Corporation of Japan despite not being a class of goods that Sony has rights in. Once trademark rights are established in a particular jurisdiction, these rights are generally only enforceable in that jurisdiction, a quality which is sometimes known as territoriality. However, there is a range of international trademark laws and systems which facilitate the protection of trademarks in more than one jurisdiction (see International trademark laws below). The application must be filed in the name of the owner of the mark. The owner of the mark is the person or entity who controls the nature and quality of the goods/services identified by the mark. The owner is not necessarily the name of the person filling out the form. The owner may be an individual, corporation, partnership, LLC, or other type of legal entity.

4.5 ADOPTION OF INTERNATIONAL IP STANDARDS

As part of ongoing efforts to modernize its intellectual property (IP) legal infrastructure, India has adopted or plans to adopt key international trademark classifications and registration structures. Nice Classification India has recently adopted the Nice Classification (9th Edition) for trademark goods and services. As a result, India has added classes 43 (Services for providing

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food and drink. temporary accommodation), 44 (Medical services. veterinary services. hygienic and beauty care for human beings or animals. agriculture, horticulture and forestry services), and 45 (Legal services. security services for the protection of property and individuals.-personal and social services rendered by others to meet the needs of individuals). In addition, it has modified class 42 (Scientific and technological services and research and design relating thereto. industrial analysis and research services. design and development of computer hardware and software) to conform to the Nice Classification. This change impacts new registrations for those classes, as well as registered marks and pending applications for class 42. Pending applicants for Class 42 must now seek reclassification using Form TM-16 (Request for correction of clerical error, or for amendment). Owners of marks registered in class 42 but which now fall into other classes or across classes must be reclassified using form TM-40 (Application by the proprietor of a registered trade mark for the conversion of the specification). This will not change the original date of registration. The Madrid Protocol Further strengthening intellectual property rights in India is the countrys recent decision to ratify the Madrid Protocol governing the international registration of trademarks. It is expected that the Indian government will complete the ratification process by the end of 2010. Once this is achieved, multinational brand owners will be able to designate India when filing international trademark applications under the Madrid Protocol, streamlining the registration process. In addition, Indian companies will be able file for international protection of their marks more easily and cost-effectively, promoting global expansion of their brands. Adoption of the Madrid Protocol marks a major step forward in enabling international registration of Indian trademarks. Administered by the World Intellectual Property Organization (WIPO), the Madrid Protocol offers a low-cost method of registering and renewing trademarks in other participating countries. Applicants can apply for trademark protection in some or all of the Madrid Protocol countries with a single application. A key provision of the Madrid Protocol is that all unopposed trademark applications be registered within 18 months of the application date. Intended to accelerate the process, this provision will undoubtedly place even greater pressure on Indias Trademark Registry to improve and modernize its infrastructure.

4.6 ADVANTAGES TRADEMARK 4.6.1 Advantages

AND

DISADVANTAGES

OF

ASSIGNING

If you assign your trade mark you may receive a one off lump sum to get back the cost of registration. You may also be able to negotiate a price for your mark, with the other party.

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An assignment of trade mark can release you from the ongoing responsibility on the ongoing management and enforcement of the trade mark. There is also no ongoing responsibility. 4.6.2 Disadvantages

As you are selling your trade mark you will relinquish all control over it. It can be difficult to value your trade mark and you may lose out to licensing in the long term.

4.7 ADVANTAGES TRADEMARK

4.7.1

AND

DISADVANTAGES

OF

LICENSING

Advantages You may be able to retain control over your trade mark and how it is used You may be able to obtain ongoing royalty payments. It may be possible to maximise exploitation in terms of territory, goods or services covered and volume of sales

4.7.2 Disadvantages

If an agreement between the licensor and licensee broke down, the ex-licensee may become a competitor and seek to challenge the validity of the trade mark. There will be continuing obligations with the licence of a trade mark. This includes the need to enforce rights on behalf of the licensees for example enforcing trade mark infringement.

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Chapter-5

IT ACT 2000 5.1 Introduction to IT Act 2000

The primary purpose of the Act is to provide legal recognition to electronic commerce and to facilitate filing of electronic records with the Government. The IT Act also penalizes various cyber crimes and provides strict punishments (imprisonment terms up to 10 years and compensation up to Rs 1 crore). The Act states that unless otherwise agreed, an acceptance of contract may be expressed by electronic means of communication and the same shall have legal validity and enforceability. Some highlights of the Act are listed below: Chapter-II of the Act specifically stipulates that any subscriber may authenticate an electronic record by affixing his digital signature. It further states that any person can verify an electronic record by use of a public key of the subscriber. Chapter-III of the Act details about Electronic Governance and provides inter alia amongst others that where any law provides that information or any other matter shall be in writing or in the typewritten or printed form, then, notwithstanding anything contained in such law, such requirement shall be deemed to have been satisfied if such information or matter is rendered or made available in an electronic form. and accessible so as to be usable for a subsequent reference. Chapter-IV of the said Act gives a scheme for Regulation of Certifying Authorities. The Act envisages a Controller of Certifying Authorities who shall perform the function of exercising supervision over the activities of the Certifying Authorities as also laying down standards and conditions governing the Certifying Authorities as also specifying the various forms and content of Digital Signature Certificates.. Chapter-VII of the Act details about the scheme of things relating to Digital Signature Certificates. The duties of subscribers are also enshrined in the said Act. Chapter-IX of the said Act talks about penalties and adjudication for various offences. The penalties for damage to computer, computer systems etc. has been fixed as damages by way of compensation not exceeding Rs. 1,00,00,000 to affected persons. The Act talks of appointment of any officers not below the rank of a Director to the Government of India or an equivalent officer of state government as an Adjudicating Officer who shall adjudicate whether any person has made a contravention of any of the provisions of the said Act or rules framed there under. The said Adjudicating Officer has been given the powers of a Civil Court. Chapter-X of the Act talks of the establishment of the Cyber Regulations Appellate Tribunal, which shall be an appellate body where appeals against the orders passed by the Adjudicating Officers, shall be preferred.

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Chapter-XI of the Act talks about various offences and the said offences shall be investigated only by a Police Officer not below the rank of the Deputy Superintendent of Police. These offences include tampering with computer source documents, publishing of information, which is obscene in electronic form, and hacking.

5.2 Rules and Orders passed under IT Act 2000

5.2.1 Executive Order (12 September 2002) An Executive Order dated 12 September 2002 contained instructions relating provisions of the Act with regard to protected systems and application for the issue of a Digital Signature Certificate. 5.2.2 Information Technology Order (19 September 2002) Minor errors in the Act were rectified by the Information Technology (Removal of Difficulties) Order, 2002 which was passed on 19 September 2002. 5.2.3 Negotiable Instruments Act (2002) The IT Act was amended by the Negotiable Instruments (Amendments and Miscellaneous Provisions) Act, 2002. This introduced the concept of electronic cheques and truncated cheques. 5.2.4 Information Technology (Use of Electronic Records and Digital Signatures) Rules, 2004 Information Technology (Use of Electronic Records and Digital Signatures) Rules, 2004 has provided the necessary legal framework for filing of documents with the Government as well as issue of licenses by the Government. It also provides for payment and receipt of fees in relation to the Government bodies. 5.2.5 Information Technology (Certifying Authorities) Rules, 2000 On the same day, the Information Technology (Certifying Authorities) Rules, 2000 also came into force. These rules prescribe the eligibility, appointment and working of Certifying Authorities (CA). These rules also lay down the technical standards, procedures and security methods to be used by a CA. These rules were amended in 2003, 2004 and 2005. 5.2.6 Information Technology (Certifying Authority) Regulations, 2001 Information Technology (Certifying Authority) Regulations, 2001 came into force on 9 July 2001. They provide further technical standards and procedures to be used by a CA. Two important guidelines relating to CAs were issued. The first are the Guidelines for submission of application for license to operate as a Certifying Authority under the IT Act. These guidelines
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TRADEMARK were issued on 9th July 2001. Next were the Guidelines for submission of certificates and certification revocation lists to the Controller of Certifying Authorities for publishing in National Repository of Digital Certificates. These were issued on 15th December 2002. 5.2.7 Cyber Regulations Appellate Tribunal (Procedure) Rules, 2000 The Cyber Regulations Appellate Tribunal (Procedure) Rules, 2000 also came into force on 17th October 2000. These rules prescribe the appointment and working of the Cyber Regulations Appellate Tribunal (CRAT) whose primary role is to hear appeals against orders of the Adjudicating Officers. 5.2.8 Cyber Regulations Appellate Tribunal (Salary, Allowances and other terms and Conditions of service of Presiding Officer) Rules, 2003 The Cyber Regulations Appellate Tribunal (Salary, Allowances and other terms and conditions of service of Presiding Officer) Rules, 2003 prescribe the salary, allowances and other terms for the Presiding Officer of the CRAT. 5.2.9 Information Technology (Other powers of Civil Court vested in Cyber Appellate Tribunal) Rules 2003 Information Technology (Other powers of Civil Court vested in Cyber Appellate Tribunal) Rules 2003 provided some additional powers to the CRAT. 5.2.10 Information Technology (Qualification and Experience of Adjudicating Officers and Manner of Holding Enquiry) Rules, 2003 These rules prescribe the qualifications required for Adjudicating Officers. Their chief responsibility under the IT Act is to adjudicate on cases such as unauthorized access, unauthorized copying of data, spread of viruses, denial of service attacks, disruption of computers, computer manipulation etc. These rules also prescribe the manner and mode of inquiry and adjudication by these officers. The appointment of adjudicating officers to decide the fate of multi-crore cyber crime cases in India was the result of the public interest litigation filed by students of Asian School of Cyber Laws (ASCL). The Government had not appointed the Adjudicating Officers or the Cyber Regulations Appellate Tribunal for almost 2 years after the passage of the IT Act. This prompted ASCL students to file a Public Interest Litigation (PIL) in the Bombay High Court asking for a speedy appointment of Adjudicating officers. Following this the Central Government passed an order dated 23rd March 2003 appointing the Secretary of Department of Information Technology of each of the States or of Union Territories of India as the adjudicating officers. 5.2.11 Information Technology (Security Procedure) Rules, 2004

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TRADEMARK The Information Technology (Security Procedure) Rules, 2004 came into force on 29 th October 2004. They prescribe provisions relating to secure digital signatures and secure electronic records. Also relevant are the Information Technology (Other Standards) Rules, 2003. 5.2.12 Order relating to blocking of websites An important order relating to blocking of websites was passed on 27th February, 2003. Computer Emergency Response Team (CERT-IND) can instruct Department of Telecommunications (DOT) to block a website.

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Chapter-6

TRADEMARK LAW IN INDIA 6.1 GENERAL INTRODUCTION

Indias obligations under the TRIPS Agreement for protection of trademarks, inter alia, include protection to distinguishing marks, recognition of service marks, indefinite periodical renewal of registration, abolition of compulsory licensing of trademarks, etc. With the globalization of trade, brand names, trade names, marks, etc. have attained an immense value that require uniform minimum standards of protection and efficient procedures for enforcement as were recognised under the TRIPS. In view of the same, extensive review and consequential amendment of the old Indian Trade and Merchandise Marks Act, 1958 was carried out and the new Trade Marks Act, 1999 was enacted. The said Act of 1999, with subsequent amendments, conforms to the TRIPS and is in accordance with the international systems and practices. The Trade Marks Act provides, inter alia, for registration of service marks, filing of multiclass applications, increasing the term of registration of a trademark to ten years as well as recognition of the concept of well-known marks, etc. The Indian judiciary has been proactive in the protection of trademarks, and it has extended the protection under the trademarks law to Domain India, being a common law country, follows not only the codified law, but also common law principles, and as such provides for infringement as well as passing off actions against violation of trademarks. Section 135 of the Trade Marks Act recognises both infringement as well as passing off actions. 6.1.1 Legal Remedies against Infringement and/or Passing off Under the Trade Marks Act, both civil and criminal remedies are simultaneously available against infringement and passing off. Infringement of trademark is violation of the exclusive rights granted to the registered proprietor of the trademark to use the same. A trademark is said to be infringed by a person, who, not being a permitted user, uses an identical/ similar/ deceptively similar mark to the registered trademark without the authorization of the registered proprietor of the trademark. However, it is pertinent to note that the Indian trademark law protects the vested rights of a prior user against a registered proprietor which is based on common law principles. Passing off is a common law tort used to enforce unregistered trademark rights. Passing off essentially occurs where the reputation in the trademark of party A is misappropriated by party

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B, such that party B misrepresents as being the owner of the trademark or having some affiliation/nexus with party A, thereby damaging the goodwill of party A. For an action of passing off, registration of a trademark is irrelevant. Registration of a trademark is not a pre-requisite in order to sustain a civil or criminal action against violation of trademarks in India. In India, a combined civil action for infringement of trademark and passing off can be initiated. Significantly, infringement of a trademark is a cognizable offence and criminal proceedings can be initiated against the infringers. Such enforcement mechanisms are expected to boost the protection of marks in India and reduce infringement and contravention of trademarks. Relief granted by Courts in Suits for Infringement and Passing off The relief which a court may usually grant in a suit for infringement or passing off includes permanent and interim injunction, damages or account of profits, delivery of the infringing goods for destruction and cost of the legal proceedings. The order of interim injunction may be passed ex parte or after notice. The Interim reliefs in the suit may also include order for: (a) Appointment of a local commissioner, which is akin to an Anton Pillar Order, for search, seizure and preservation of infringing goods, account books and preparation of inventory, etc. (b) Restraining the infringer from disposing of or dealing with the assets in a manner which may adversely affect plaintiffs ability to recover damages, costs or other pecuniary remedies which may be finally awarded to the plaintiff. Offences and Penalties In case of a criminal action for infringement or passing off, the offence is punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and fine which shall not be less than INR 50,000 but may extend to INR 200,000.
6.1.2 CYBER LAWS IN INDIA Cyber Law is the law governing cyber space. Cyber space is a very wide term and includes computers, networks, software, data storage devices (such as hard disks, USB disks etc), the Internet, websites, emails and even electronic devices such as cell phones, ATM machines etc. Law encompasses the rules of conduct: 1. That have been approved by the government, and 2. Which are in force over a certain territory, and 3. Which must be obeyed by all persons on that territory? Violation of these rules could lead to government action such as imprisonment or fine or an order to pay compensation. Cyber law encompasses laws relating to: 1. Cyber Crimes

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2. Electronic and Digital Signatures 3. Intellectual Property 4. Data Protection and Privacy Cyber crimes are unlawful acts where the computer is used either as a tool or a target or both. The enormous growth in electronic commerce (e-commerce) and online share trading has led to a phenomenal spurt in incidents of cyber crime. These crimes are discussed in detail further in this chapter.. Intellectual property is refers to creations of the human mind e.g. a story, a song, a painting, a design etc. The facets of intellectual property that relate to cyber space are covered by cyber law. All rights are reserved.These include: Copyright law in relation to computer software, computer source code, websites, cell phone content etc. Software and source code licenses. Trademark law with relation to domain names, meta tags, mirroring, framing, linking etc. Semiconductor law which relates to the protection of semiconductor integrated circuits design and layouts, Patent law in relation to computer hardware and software. Data protection and privacy laws aim to achieve a fair balance between the privacy rights of the individual and the interests of data controllers such as banks, hospitals, email service providers etc. These laws seek to address the challenges to privacy caused by collecting, storing and transmitting data using new technologies. 6.1.3 Need Of Cyber Laws There are various reasons why it is extremely difficult for conventional law to cope with cyberspace. Some of these are discussed below. 1. Cyberspace is an intangible dimension that is impossible to govern and regulate using conventional law. 2. Cyberspace has complete disrespect for jurisdictional boundaries. A person in India could break into a banks electronic vault hosted on a computer in USA and transfer millions of Rupees to another bank in Switzerland, all within minutes. All he would need is a laptop computer and a cell phone. 3. Cyberspace handles gigantic traffic volumes every second. Billions of emails are crisscrossing the globe even as we read this, millions of websites are being accessed every minute and billions of dollars are electronically transferred around the world by banks every day. 4. Cyberspace is absolutely open to participation by all. Ten year-old in Bhutan can have a live chat session with an eight year-old in Bali without any regard for the distance or the anonymity between them.

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6. Cyberspace offers enormous potential for anonymity to its members. Readily available encryption software and steganographic tools that seamlessly hide information within image and sound files ensure the confidentiality of information exchanged between cyber-citizens. 6. Cyberspace offers never-seen-before economic efficiency. Billions of dollars worth of software can be traded over the Internet without the need for any government licenses, shipping and handling charges and without paying any customs duty. 7. Electronic information has become the main object of cyber crime. It is characterized by extreme mobility, which exceeds by far the mobility of persons, goods or other services. International computer networks can transfer huge amounts of data around the globe in a matter of seconds. 8. A software source code worth crores of rupees or a movie can be pirated across the globe within hours of their release. 9. Theft of corporeal information (e.g. books, papers, CD ROMs, floppy disks) is easily covered by traditional penal provisions. However, the problem begins when electronic records are copied quickly, inconspicuously and often via telecommunication facilities. Here the original information, so to say, remains in the possession of the owner and yet information getsstolen.

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Chapter- 7

EVOLUTION OF KEY TERMS AND CONCEPTS

To understand the cyber law, it is essential to examine how the definitions of key terms and concepts have developed.

7.1 COMPUTER
According to one of the section of the IT Act "computer" means any electronic magnetic, optical or other high-speed data processing device or system which performs logical, arithmetic, and memory functions by manipulations of electronic, magnetic or optical impulses, and includes all input, output, processing, storage, computer software, or communication facilities which are connected or related to the computer in a computer system or computer network. A computer has the following characteristics: 1. It is a high-speed data processing device or system. 2. It may be electronic, magnetic, optical etc. 3. It performs logical, arithmetic, and memory functions 4. These functions are performed by manipulations of electronic, magnetic or optical impulses. Computer includes: 1. All input facilities, 2. All output facilities, 3. All processing facilities, 4. All storage facilities, 7. All computer software facilities, and 7. All communication facilities which are connected or related to the computer in a computer system or network. Development of this technology is still in a nascent stage. Optical data processing can perform several operations simultaneously (in parallel) much faster and easier than electronics. Optical fiber is the medium and the technology associated with the transmission of information as light pulses along a glass or plastic wire or fiber. Optical fiber carries much more information than conventional copper wire and is in general not subject to electromagnetic interference. A data processing device or system is a mechanism that can perform pre defined operations upon information. The following are illustrations of functions in relation to a conventional desktop personal computer. saving information on a hard disk,

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TRADEMARK Logging on to the Internet, retrieving stored information, calculating mathematical formulae. Logical functions, simply put, refer to non arithmetic processing that arranges numbers or letters according to a predefined format e.g. arranging numbers in ascending order, arranging words alphabetically etc. Arithmetic functions, simply put, are operations concerned or involved with mathematics and the addition, subtraction, multiplication and division of numbers. Memory functions, simply put, refer to operations involving storage of data. Fundamentals of Cyber Law Input facilities are those which transfer information from the outside world into a computer system. E.g. keyboard, mouse, touch screen, joystick, microphone, scanner etc. Output facilities are those which transfer data out of the computer in the form of text, images, sounds etc to a display screen, printer, storage device etc. Hard disks, USB disks, floppies act as both input and output facilities. Processing facilities primarily refers to the Central Processing Unit (CPU) of a computer. Referred to as the brain of the computer, the CPU processes instructions and data. Storage facilities include hard disks and other data storage facilities. This term would also include the physical cabinet in which a computer is housed. Computer software facilities refer to the operating system and application software that are essential for a computer to function in a useful manner. Communication facilities include the network interface cards, modems and other devices that enable a computer to communicate with other computers. Illustrations Considering the wide definition given to the term computer by the IT Act the following are examples of computers: Desktop personal computers Mobile phones Microwave ovens Computer printers Scanners installed computer software Automatic Teller Machine (ATM) smart homes which can be controlled through the Internet Fundamentals of Cyber Law Relevant Case Law In an interesting case, the Karnataka High Court laid down that ATMs are not computers, but are electronic devices under the Karnataka Sales Tax Act, 1977. Diebold Systems Pvt Ltd

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manufacturer and supplier of Automated Teller Machines (ATM)] had sought a clarification from the Advance Ruling Authority (ARA) in Karnataka on the rate of tax applicable under the Karnataka Sales Tax Act, 1977 on sale of ATMs.

7.2 DATA
According to one of the section of the IT Act data means a representation of information, knowledge, facts, concepts or instructions which are being prepared or have been prepared in a formalized manner, and is intended to be processed, is being processed or has been processed in a computer system or computer network, and may be in any form (including computer printouts magnetic or optical storage media, punched cards, punched tapes) or stored internally in the memory of the computer. Simply put, data is 1. A representation of information, knowledge, facts, concepts or Instructions, 2. Prepared or being prepared in a formalized manner. 3. Processed. being processed or sought to be processed in a computer. Illustration Sanya is typing a document on her computer. The moment she presses keys on her keyboard, the corresponding alphabets are shown on her screen. But in the background some parts of the document are stored in the RAM of her computer (being processed) while other parts are stored on the hard disk (processed). At any given instant some information would be passing from her keyboard to the computer (sought to be processed). Data can be in many forms such as 1. Computer printouts, 2. Magnetic storage media e.g. hard disks, 3. Optical storage media e.g. CD ROMs, DVDs, VCDs 4. punched cards or tapes i.e. a paper card in which holes is punched. Illustration The electronic version of this book stored on your computer or on a CD would be data. A printout of the electronic version of this book will also be data.

7.3 COMPUTER SOFTWARE

Computer software is a general term that describes a collection of: 1. Computer programs, 2. Procedures and 3. Documentation. Computer hardware, on the other hand, consists of the physical devices that can store and execute computer software. Illustration
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Sanya downloads the OpenOffice software from the Internet. In effect what she downloads is an executable file. She double-clicks on the executable file and begins to install the software on her computer. During the installation she specifies the part (drive and folder name etc) of the hard disk where the software files must be saved. Computer software can be divided into two fundamental categories 1. Application software uses the computer directly for performing user tasks. 2. System software enables the application software to use the computers capabilities. System software can be of various types such as: 1. Operating systems which form the platform for all other software on a computer, 2. Device drivers which allow computer programs to interact with a hardware devices such as printers, scanners etc, 3. Programming tools which help programmers to develop and test other programs, 4. Compilers which compile the source code into the object code, 7. Linkers which link object code files (and libraries) to generate an executable file, 7. Utility software that helps manage and tune the computer hardware, operating system or application software. Application software include 1. Word processors (e.g. Microsoft Word), 2. Spreadsheets (e.g. Microsoft Excel) 3. Presentation software (e.g. Microsoft PowerPoint) 4. Media players (e.g. Microsoft Windows Media Player) 7. Games (e.g. Need for Speed, Age of Empires) 7. Forensic software (e.g. Win hex, X-Ways Forensics) 7. Encryption software (e.g. PGP) 8. Internet browsers (e.g. Mozilla Firefox)

7.4 COMPUTER SYSTEM

"Computer system" means a device or collection of devices, including input and output support devices and excluding calculators which are not programmable and capable of being used in conjunction with external files, which contain computer programs, electronic instructions, input data and output data, that performs logic, arithmetic, data storage and retrieval, communication control and other functions. Simply put, a computer system has the following characteristics: 1. it is a device or collection of devices which contain data or programs, 2. it performs functions such as logic, storage, arithmetic etc, 3. it includes input and output support systems, 4. it excludes non-programmable calculators.
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Illustrations: Laptop computers Cell phones Sophisticated laser printers Hi-end scanners The American courts have held that the Internet falls under the definition of computer system and the use of email is accessing a computer.

7.7 COMPUTER NETWORK

"Computer network" means the interconnection of one or more computers through: (i) The use of satellite, microwave, terrestrial line or other communication media and (ii) Terminals or a complex consisting of two or more interconnected computers whether or not the interconnection is continuously maintained. Simply put, a computer network is the interconnection of one or more computers through: Satellite Satellite Internet connection is an arrangement in which the outgoing and incoming data travels through a satellite. Each subscribers hardware includes a satellite dish antenna and a transceiver (transmitter / receiver). The dish antenna transmits and receives signals.

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Chapter- 8

CYBER CRIME . . . AND PUNISHMENT? 8.1 Overview

The growing danger from crimes committed against computers, or against information on computers, is beginning to claim attention in national capitals. In most countries around the world, however, existing laws are likely to be unenforceable against such crimes. This lack of legal protection means that businesses and governments must rely solely on technical measures to protect themselves from those who would steal, deny access to, or destroy valuable information. Self-protection, while essential, is not sufficient to make cyberspace a safe place to conduct business. The rule of law must also be enforced. Countries where legal protections are inadequate will become increasingly less able to compete in the new economy. As cyber crime increasingly breaches national borders, nations perceived as havens run the risk of having their electronic messages blocked by the network. National governments should examine their current statutes to determine whether they are sufficient to combat the kinds of crimes discussed in this report.. This report analyzes the state of the law in 82 countries. It finds that only ten of these nations have amended their laws to cover more than half of the kinds of crimes that need to be addressed. While many of the others have initiatives underway, it is clear that a great deal of additional work is needed before organizations and individuals can be confident that cyber criminals will think twice before attacking valued systems and information.

8.2 Whats Different About Cyber Crime?

Undeterred by the prospect of arrest or prosecution, cyber criminals around the world lurk on the Net as an omnipresent menace to the financial health of businesses, to the trust of their customers, and as an emerging threat to nations security. Headlines of cyber attacks command our attention with increasing frequency. According to the Computer Emergency Response Team Coordination Center (CERT/CC), the number of reported incidences of security breaches in the first three quarters of 2000 has risen by 54 percent over the total number of reported incidences in 1999. Moreover, countless instances of illegal access and damage around the world remain unreported, as victims fear the exposure of vulnerabilities, the potential for copycat crimes, and the loss of public confidence. As this report shows, the laws of most countries do not clearly prohibit cyber crimes. Existing terrestrial laws against physical acts of trespass or breaking and entering often do not cover their virtual counterparts. Web pages such as the e-commerce sites recently hit by widespread, distributed denial of service attacks2 may not be covered by outdated laws as protected forms of property. New kinds of crimes can fall between the cracks, as the Philippines

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learned when it attempted to prosecute the perpetrator of the May 2000 Love Bug virus, which caused billions of dollars of damage worldwide.

8.3 Poor Information Security Reduces the Competitiveness of Nations

McConnell International rated mid-level economies capacity to participate in the digital economy. In considering nations information security, the report evaluated public trust in the security of information processed and stored on networks in each country. In this context, information security included: an assessment of the strength of legal protections and progress in protecting intellectual property rights, especially for software. the extent of efforts to protect electronic privacy. and the strength and effectiveness of the legal framework to authorize digital signatures. The E-Readiness report also examined the existence of legal frameworks to prosecute cyber criminals, for a predictable environment of strong deterrence for computer crime is critical to the effective protection of valuable information and networks. Although several countries, particularly in Europe and Asia, were found to have addressed a number of these broader information security factors, few countries were able to demonstrate that adequate legal measures had been taken to ensure that perpetrators of cyber crime would be held accountable for their actions. Overall, nearly half of the countries included in the EReadiness study were rated as needing substantial improvement in information security. In addition, only a small fraction of countries needing substantial improvement indicated that progress was currently underway. Outdated laws and regulations, and weak enforcement mechanisms for protecting networked information, create an inhospitable environment in which to conduct e-business within a country and across national boundaries. Inadequate legal protection of digital information can create barriers to its exchange and stunt the growth of e-commerce. As eBusiness expands globally, the need for strong and consistent means to protect networked information will grow.

8.4 The Cyber Crime Laws of Nations

Based on its findings in the E-Readiness study, and in the wake of the Philippines inability to prosecute the student responsible for the I Love You virus, McConnell International surveyed its global network of information technology policy officials to determine the state of cyber security laws around the world. Countries were asked to provide laws that would be used to prosecute criminal acts involving both private and public sector computers. Over fifty national governments4 responded with recent pieces of legislation, copies of updated statutes, draft legislation, or statements that no concrete course of action has been planned to respond to a cyber attack on the public or private sector. Countries were provided the opportunity to review the presentation of the results in draft, and this report reflects their comments. Countries that provided legislation were evaluated to determine whether their criminal statutes had been extended into cyberspace to cover ten different types of cyber crime in four categories:
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data-related crimes, including interception, modification, and theft. network-related crimes, including interference and sabotage. crimes of access, including hacking and virus distribution. and associated computer-related crimes, including aiding and abetting cyber criminals, computer fraud, and computer forgery. Thirty-three of the countries surveyed have not yet updated their laws to address any type of cyber crime. Of the remaining countries, nine have enacted legislation to address five or fewer types of cyber crime, and ten have updated their laws to prosecute against six or more of the ten types of cyber crime. Figure 1 provides a categorization of the 52 countries surveyed.

Fig. 8.1: Extent of Progress on Updating Cyber Crime Laws Figure 2 details which laws have been updated in each of the 19 countries with fully, substantially, or partially updated laws in place. In Canada, successful prosecutions of computerrelated fraud have effectively updated the law. Canada also provides an example of a phenomenon in many countriesthat law enforcement officials have strong confidence that existing laws provide sufficient coverage against the computer-related crimes of aiding and abetting cyber crimes, and computer-related fraud and forgery. Even among these countries, crimes are not treated uniformly. In some, unauthorized access is a crime only if harmful intent is present. in others, data theft is a crime only if the data relates specifically to an individuals religion or health, or if the intent is to defraud. Laws tend to be biased in favor of protecting public sector computers. Many of the laws reviewed in preparing Figure 2 outlaw crimes committed with or against government computers, but do not provide reciprocal protection to private sector computers.

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Discrepancies exist even within countries. For example, in September 2000, the Australian Democratic Party criticized the South Australian (state) government for creating a haven for cyber criminals by not having updated its laws to combat computer-based crime in accordance with the laws of Australias other states. Moreover, as Figure 2 shows, there is little uniformity across nations in terms of which types of crimes have been addressed through updated statutes. The penalties provided in updated criminal statutes vary widely. Mauritius, the Philippines, and the United States have stronger penalties than many other countries for convictions of covered cyber crimes.
Key for Table 8.1 Data Interception: Interception of data in transmission. Data Modification: Alteration, destruction, or erasing of data. Data Theft: Taking or copying data, regardless of whether it is protected by other laws, e.g., copyright, privacy, etc. Network Interference: Impeding or preventing access for others. The most common example of this action is instigating a distributed denial of service (DDOS) attack, flooding Web sites or Internet Service Providers. DDOS attacks are often launched from numerous computers that have been hacked to obey commands of the perpetrator. Network Sabotage: Modification or destruction of a network or system. Unauthorized Access: Hacking or cracking to gain access to a system or data. Virus Dissemination: Introduction of software damaging to systems or data. Aiding and Abetting: Enabling the commission of a cyber crime. Computer-Related Forgery: Alteration of data with intent to represent as authentic. Computer-Related Fraud: Alteration of data with intent to derive economic benefit from its misrepresentation.

8.5 Progress Underway in 13 Countries Without Updated Laws

Albania The Authority for the Regulation of Telecommunications began discussions earlier this year on the topic of cyber laws, with the goal of preparing protocols of collaboration and exchanging information. Cuba* A working group of the Ministry of Justice has planned modifications to the Penal Code. Gambia Gambia is planning a national information technology initiative, although the capacity for the drawing up a legal framework is limited. Gambia may look towards international organizations to spearhead this effort so that it could replicate or amend the needed laws. Iran For the past six years, Iran has examined various aspects of cyber law, although no law or regulation in regard to computer offenses has been implemented. The areas that have been considered are: computer offenses, intellectual property issues, privacy/data protection, and freedom of information.

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Kazakhstan State bodies in Kazakhstan are currently developing a law regarding cyber offences. Also in development is a special state program on the protection of information resources, including technical and software protection. Latvia* Amendments to the Criminal Code have been drafted envisaging considerable punishment for computer-related criminal acts. Corresponding additions would be made to the Administrative Offence Code. Lesotho Lesotho has established special interest groups to look at the various aspects of information security relating to e-commerce. Malta* In May 2000, Malta announced its goal of providing a strong legal framework for ecommerce, data protection, and computer misuse. The relevant Bills to develop a legislative framework for information practices were published in September 2000 and will be discussed in parliament in the coming months. Morocco In Morocco, there is an inter-ministerial commission sponsored by the Prime Minister working on security issues. New Zealand* At present there are no general computer crime offences in New Zealand. However, the country is currently drafting a Crimes Amendment Bill (No. 5). Sudan The Sudan intends to invite lawyers, legislators and computer professionals to a workshop where ideas on the nature of computer crimes and the ways of dealing with them by means of the appropriate legal codes will be exchanged. Vietnam Vietnam is in the process of gathering information to make proposals for amendments to its laws.

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Chapter-9

CONCLUSION
Capacity of human mind is unfathomable. It is not possible to eliminate cyber crime from the cyber space. It is quite possible to check them. History is the witness that no legislation has succeeded in totally eliminating crime from the globe. The only possible step is to make people aware of their rights and duties (to report crime as a collective duty towards the society) and further making the application of the laws more stringent to check crime. Undoubtedly the Act is a historical step in the cyber world. Further I all together do not deny that there is a need to bring changes in the Information Technology Act to make it more effective to combat cyber crime. I would conclude with a word of caution for the pro-legislation school that it should be kept in mind that the provisions of the cyber law are not made so stringent that it may retard the growth of the industry and prove to be counter-productive.

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Chapter-8

REFERENCES
References

The New Lexicon Webster's Encyclopedic Dictionary of the English Language. New York: Lexicon. Y. Rekhter, R. Moskowitz, D. Karrenberg, G. de Groot, E. Lear, ``Address Allocation for Private Internets.'' RFC 1918. J.P. Holbrook, J.K. Reynolds. ``Site Security Handbook.'' RFC 1244. Curtin, ``Snake Oil Warning Signs: Encryption Software to Avoid.'' USENET <sci.crypt> Frequently Asked Questions File.

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