Iprandcl April 15

8/17/2019 Iprandcl April 15

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Background of the invention (optional): You can include some background

information describing what is known (i.e. the most pertinent prior art), mention if your

invention attempts to solve any particular problems and include objectives for the

invention. Please note that the invention as described or claimed should meet any of

these objectives.

Statement of invention: This section summarises the essential and preferred features of

the invention. It sets out the scope of the invention and should be equivalent to the main

claims of your specification or, in the case of a provisional specification, claims you

intend using for any subsequent complete specification.

Detailed description of the invention: The final part of the description describes the

technical aspects of the invention in detail, explaining how to construct and use examples

of the invention or how the inventive process can be carried out. Graphs, flowcharts,

tables, experimental data and drawings can be included.

3. Claims (description and its explanation----2 marks)

Patent claims define the protective boundaries of the invention (the “scope of

monopoly”). Claims must be clear, supported by the description, and list all of the

essential features of the invention. Note:

Complete specifications must end with at least one claim.

Each claim should be written as one sentence.

A claim can be independent or dependent on an earlier claim(s).

Generally, claims begin with the broadest claim and progress to narrower claims. Claims should not contain laudatory statements like “it is cheaper" or “it is the

best way of doing it that I have seen".

The claims are usually presented on a separate page or pages, under the heading

“What I/We Claim Is:". The page numbering follows on from the description.

c What is a trademark? What are its functions?

Ans:

MEANING OF ‘TRADE MARK’ (1 mark) A consumer is duped if he buys a commodity presuming it to have originated from a

certain identified source when actually it is not, and later he finds the commoditysubstandard. In the process, the reputation of trader suffers. The interests of both the

consumer and the trader can be saved if some definite symbol which marks out the origin

of goods from a definite trade source is attached with the goods emanating from such

source. Such a symbol is called a trade mark.

THE FUNCTIONS OF A TRADE MARK (Four functions----4 marks)A trade mark serves the purpose of identifying the source of origin of goods. Trade mark

performs the following four functions:--

1. It identifies the product and its origin. For example, the trade mark ‘Brooke Bond’

identifies tea originating from the Company manufacturing tea and marketing it underthat mark.


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Copyright Law, which is of English origin and provenance has a moral basis, and is

based on the Eighth Commandment, “Thou Shalt not Steal” (as held by the Supreme

Court in R.G. Anand Case 1978). The fundamental objective of Indian and English

Copyright Law has always been the protection of the fruits of a man’s skill, labour and

effort from appropriation by others. Thus protecting, recognizing and encouraging the

labour, skill and capital of another is the object of a copyright.

6. Multiple rights

Copyright is not a single right. It consists of a bundle of different rights in the same

work. For instance, in case of a literary work copyright comprises the right of

reproduction in hard back and paperback editions, the right of serial publication in

newspapers and magazines, the right of dramatic and cinematographic versions, the right

of translation, adaptation, abridgement and the right of public performance.

7. Neighboring rights

Copyright consists not merely of the right to reproduction. It also consists of the right to

works derived from the original works; rights like the right of public performance, the

recording right and the broadcasting right which are as important or even more than the

right of reproduction. Such related rights are termed “neighboring rights”.

2 Attempt any two of the following: 10

a Explain computer software as Intellectual Property and its protection.

Copy right law and computer software: (2 points---2 marks)

a)

In India, the Intellectual Property Rights (IPR) of computer software is covered

under the Copyright Law. Accordingly, the copyright of computer software is

protect

b) ed under the provisions of Indian Copyright Act 1957.

c) Major changes to Indian Copyright Law were introduced in 1994 and came into

effect from 10 May 1995. These changes or amendments made the Indian

Copyright law one of the toughest in the world.

Its Protection: (6 points----3 marks)Since most software is easy to duplicate, and the copy is usually as good as original, the

Copyright Act was needed.

Some of the key aspects of the law are:According to section 14 of this Act, it is illegal to make or distribute copies of

copyrighted software without proper or specific authorization.

The violator can be tried under both civil and criminal law.

A civil and criminal action may be instituted for injunction, actual damages

(including violator's

profits) or statutory damages per infringement etc.

Heavy punishment and fines for infringement of software copyright.

Section 63 B stipulates a minimum jail term of 7 days, which can be extended up

to 3 years.

b

Explain SCPA Semiconductor Chip Protection Act, in detail.What is SCPA? (1 mark)


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The Semiconductor Chip Protection Act of 1984 was an innovative solution to this new

problem of technology-based industry. While some copyright principles underlie the law,

as do some attributes of patent law, the Act was uniquely adapted to semiconductor mask

works, in order to achieve appropriate protection for original designs while meeting the

competitive needs of the industry and serving the public interest.

How SCPA Operates? (Any 4 features with brief explanation---4 marks)Although the U.S. SCPA is codified in title 17 (copyrights), the SCPA is not

a copyright or patent law. Rather, it is a law resembling a utility model law. It has some

aspects of copyright law, some aspects of patent law, and in some ways it is completely

different from either.

In general, the chip topography laws of other nations are also utility model laws.

Nevertheless, copyright and patent case law illuminate many aspects of the SCPA and its

interpretation.

1. Acquisition of protection by registrationChip protection is acquired under the SCPA by filing with the U.S. Copyright Office an

application for "mask work" registration under the SCPA, together with a filing fee. Theapplication must be accompanied by identifying material, such as pictorial

representations of the IC layers — so that, in the event of infringement litigation, it can be

determined what the registration covers. Protection continues for ten years from the date

of registration.

2. Mask worksThe SCPA repeatedly refers to "mask works." This term is a remains of the original form

of the bill that became the SCPA and was passed in the Senate as an amendment to the

Copyright Act. The term mask work is parallel to and consistent with the terminology of

the 1976 Copyright Act, which introduced the concept of "literary works," "pictorial

works," "audiovisual works," and the like — and which protected physical embodiments

of such works, such as books, paintings, video game cassettes, and the like against

unauthorized copying and distribution. The term "mask work" is not limited to actual

masks used in chip manufacture, but is defined broadly in the SCPA to include the

topographic creation embodied in the masks and chips. Moreover, the SCPA protects any

physical embodiment of a mask work.

3. EnforcementThe owner of mask work rights may pursue an alleged infringer ("chip pirate") by

bringing an action for mask work infringement in federal district court. The remedies

available correspond generally to those of copyright law and patent law.

4. Functionality unprotected

The SCPA does not protect functional aspects of chip designs. That is reserved to patentlaw. Although EPROM and other memory chips topographies are protectable under the

SCPA, such protection does not extend to the information stored in chips, such as

computer programs. Such information is protected, if at all, only by copyright law.

5. Reverse engineering not prohibitedThe SCPA permits competitive emulation of a chip by means of reverse engineering.

The ordinary test for illegal copying (mask work infringement) is the "substantial

similarity" test of copyright law, but when the defence of reverse engineering is involved

and supported by probative evidence, then, the accused chip topography must be

substantially identical rather than just substantially similar, for the defendant to be liable

for infringement. Most world chip topography protection laws provide for a reverse

engineering privilege.


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c

Explain the procedure for registration of domain names.

Definition: (1 mark)A domain n ame i s an ident ification string that defin es a sph ere of

administ ra tive autonomy, authority, or control on the Internet. Domain names are

fo rm ed by the rules and procedures of the Domain Name System(DNS). Domainnames are used in vari ous networ king contexts and appli cation-

specific naming and addressing purposes. In general, a domain name represents an

Internet Protocol(IP) resource, such as a personal computer used to access the Internet,

a server computer hosting web site or the web site itself or any other service

communicated via the Internet. If desired, you can register more than one domain name

at the same time.

Steps of Registration: (9 steps in flow 3 marks)

Registering is done one step at a time as outlined below.

1. Use the Search function to verify that the domain name(s) you'd like is/are

available2.

Select the domain name(s) you want to register

3. Setup your account control panel by entering a UserName and Password

4.

Select the number of years you want to register

5. Enter information to register your ownership of the domain name(s) ;Click on

"Continue"

6. Review your contact information. If the same information is to be used for the

Technical, Administrative and Billing contacts, nothing further needs to be done.

However, if there is different person to be listed as the Technical, Administrative

and/or Billing contacts, click on that title to enter their information. If these are

not changed, the registrant (owner) will be listed as all contacts. Click on

"Continue".

7.

Enter the DNS - Domain Name Services - data for your website host.

8. Add Web E-mail or E-mail Forwarding (if desired) and confirm that all the

registration information is correct.

9. Review and confirm that item(s) being ordered is/are correct ;Make payment by

credit card - shopping cart is That SSL secured ; Use your browser's Print button

to print a receipt

Conclusion: (1 mark)your domain name(s) will be registered in real-time. Within 72 hours the domain name

will become accessible on the internet which is the normal internet propagation time --

the time for new DNS information to spread to the thousands of name servers all over theinternet.

It is impossible for someone else to register your domain name after you registered it

because our domain name will be verified for availability through shared registration

systems. Basically, these is a universal database of unavailable domain names. These

systems prevent a domain name that has been successfully registered from being

registered by others.

d What are digital Copyright issues?

About digital Copyright: (1 mark)The decentralized nature of Internet makes it possible for any user to disseminate a work

endlessly in the cyberspace through an end number of outlets, thereby giving rise to global piracy.


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Estimates of global losses from pirated books, music and entertainment software range

into billions of dollars.

The Internet in a way presents a troublesome situation for copyright holders as the users

become mass disseminators of others copyright material and creates disequilibrium

between the authors and users.

The advent of digital technology, therefore presents legislators with a choice: eitherexpand or modify existing 'old media notions' or redefine the catalogue of restricted acts.

Taking into account the peculiarities of the new environment , multiple aspects of

issues are discussed as given below. (Any 4 issues with brief explanation---4 marks)

The Right of Reproduction : (Web casting)The reproduction right has been at the heart of copyright law for more than three hundred

years. Though recognized as a determining right, the reproduction right per se has not been

unambiguously delimited by the international instruments for copyright protection . Due

to the lack of agreement on the right's scope and content, it did not include any provision

that expressly protected the reproduction right The advent of the Internet makes thedelimitation of the reproduction right more problematic in the digital age. Given that any

transmission of protected works over the Internet involves the reproductions transitorily

stored in the connected computers' RAM, the question of whether right owners should be

granted with the control over all temporary reproductions looms large amid the

dematerialized and decentralized nature of the Internet.

The Right of Communication to the Public :(Database protection)

Digital technology blurs the line between different categories of copyrightable works and

the means of communication to the public as well. On the other hand, in the midst of fast

development in digital technology, the computer networks, in particular the Internet,

brings forth a point-to-point way of transmitting works on an on-demand and interactive

basis. The interactivity and individuality afforded by this new method of exploiting works,

makes it possible for any member of the public to have the full discretion in determining

the place and the time one is intended to access and use works in digital form.

Legal Protection of Technological Measures:(Source of protection)

In response to the increasing ease of reproduction and disseminating works over the

internet, copyright owners and their technology have designed entirely novel and more

effective technological measures, to constrain physical access to and use of their

copyrighted works.

The North America Free Trade Agreement, 1992 provides for criminal and civil remedies

against decoding the encrypted program carrying satellite signals and related acts.Legal Protection of Rights Management Information : (ISP liabilities)It is important that whenever a work or an object of related rights is requested and

transmitted over the network, the fact of the use is registered together with all the

information necessary to ensure that the agreed payment can be transferred to the

appropriate right owner(s). Various technologies in this respect are available or being

developed which will enable the necessary feedback to the right owners. It is crucial,

however, that such information is not removed or distorted, because the remuneration of

the right owners would in that case not be paid at all, or it would be diverted.

Limitations and Exceptions:(Rights of performance)From earliest times in the history of copyright, it has been recognized that in certain cases

limitations or exceptions should be placed on the exercise or scope of established rightsand may be termed as “internal restrictions”, i.e. they are actual or potential restrictions


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resulting from the provisions of the instrument itself . The reasons given for imposing such

restrictions may be based on considerations of public interest, prevention of monopoly

control, etc. The limitations on copyright are necessary to keep the balance between two

conflicting public interests: the public interest in rewarding creators and the public interest

in the widest dissemination of their works, which is also the interest of the users of such

works .Copyright Enforcement in Digital Environment: (Linking)

Global computer-based communications cut across territorial borders, creating a new

empire of human activity and undermining the feasibility and legitimacy of laws based on

geographical boundaries. Digital technology has made copyright enforcement difficult to

achieve. In the online environment, works such as videos, recordings of musical

performances, and texts can be posted anywhere in the world, retrieved from databases in

foreign countries, or made available by online service providers to subscribers located

throughout the globe. Our system of international copyright protection, however,

historically has been based on the application of national copyright laws with strict

territorial effects and on the application of choice-of-law rules to determine which

country's copyright laws would apply.

3 Attempt any two of the following: 10a

Discuss transfer of patent rights in the form of assignment.

What is assignment: (1 mark)Assignment, as defined in Black’s Law Dictionary, means the transfer by a party of all of

its rights or interest in the property.

In case of intangible property like a patent, the transfer is made through an agreement to

this effect.

The difference between assignment and licence (2 points---2 marks)

1. A licence merely confers a personal privilege to do some particular act(s) which

the licensee can perform. There is no transfer of interest in license.

2. On the contrary, assignment means the transfer of interest in the patent: whole or

in part of the patent rights, e.g., for the whole of India or a part thereof.

Assignee (3 points---2 marks)

1. The person in whose favor a right has been assigned is the assignee and the person

who assigns the right (patentee himself or his agent) is the assignor.2. In case an assignment has been made in favor of a person who has since died, the

term assignee would denote the legal representative, that is the person who in law

represents the estate of the deceased person.

3. Where assignment is made in favor of two or more persons, they become owners

of such interest in the patent.

b

What are different kinds of assignments?

There can be 3 kinds of assignments : -

Enlist the three types of assignment:(1 mark)1. Legal

2.

Equitable3.

Mortgage


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Explanation:

1. Legal assignment (1 mark) – An assignment of an existing patent through an

agreement which has been duly registered is a legal assignment. A legal assignee

has the right to have his name entered in the Register of patents maintained in the

Controller’s Office as proprietor of the patent and can thereafter exercise all therights conferred on him by the proprietor of patent.

2. Equitable assignment (2 marks) – Any document such as letter not being an

agreement, which is duly registered with Controller in which patentee agrees to

give another person certain defined right in the patent with immediate effect, is an

equitable assignment. An assignee in such a case cannot have his name entered in

the Register as the proprietor of patent. He can only have a notice of his interest

entered in the register. He can convert the equitable assignment to legal

assignment by getting a written agreement to this effect and having it duly

registered.

3. Mortgage (1 mark) – A mortgage is also a form of assignment. A mortgage is a

document transferring the patent rights either wholly or partly to the mortgagee

with a view to secure the payment of a specified sum of money. The mortgagor

(patentee) is entitled to have the patent re-transferred to him on refund of the money

to the mortgagee. The mortgagee (a person in whose favour a mortgage is made)

is not entitled to have his name entered in the Register as the proprietor, but he can

get his name entered in the Register as a mortgagee.

c Explain “Protecting good will through copy rights”.

Ans:

Introduction of Protection of Goodwill (2 points---2 marks)

1. Many country protect unregistered well known marks in accordance to

international obligations.

2. Not only big company but also small scale enterprises have a good chance of

establishing goodwill with customers so that their trademarks are well recognized

and well known that acquires protection without registration, however it is

important to register your trademark, if not the reputation of trademark can be

weekend by unauthorized use of that mark by others.

Every trademark user should be aware of the facts that are related to a number of

trademarks. (3 points---3 marks) Trademark are registered and protected user the following conditions-

i. The goods and services for which the marks is used and is not identified or

similar to the goods for which the well known mark is being used.

ii. The use of another mark indicates a connection between these goods and the

owner of well known Trademark.

iii. The user of the owner of the Trademark where his interest are likely to be

damaged by such use.

d

What are essential factors for infringement of Trademark?

Ans:

About infringement: ( 1 mark)


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Infringement of a trade mark occurs if a person other than the registered proprietor in the

course of trade, in relation to the same goods or services for which the mark is registered,

uses the same mark or a deceptively similar mark.

ESSENTIALS OF INFRINGEMENT (4 points---4marks)

1. The taking of any essential feature of the mark or taking the whole of the mark and

then making a few additions and alterations would constitute infringement.

2. The infringing mark must be used in the course of trade, i.e., in a regular trade

wherein the proprietor of the mark is engaged.

3. The use of the infringing mark must be printed or usual representation of the mark

in advertisements, invoices or bills. Any oral use of the trade mark is not

infringement.

4. Any or all of the above acts would constitute infringement if the same is done in

such manner as to sender the use of the mark likely to be taken as being used as a

trade mark.

4 Attempt any two of the following: 10a

What are disadvantages of IP licensing?

What is IP Licensing (1 mark)

Disadvantages: (4 points----4 marks)1. Though IP licensing is beneficial to both licensor & licensee, sometimes

through licensing, the owner may lose his control on the technology & there

may be great risk of piracy & exploitation by unauthorized parties.

2. It may so happen that the licensee develops technology around the product,

he has the license for & make the original licensor to lose his superiority.

3.

The revenue from the licensee depends on his performance. Hence the

licensor loses the revenue to that extent. For the licensee, the technology

may become redundant in short span of time & he may have to go in for a

new one at a higher price.

4. In case the technology is not tested, the licensee will be at great risk of

losing the money if relevant risk aversion clauses are not stipulated in the

agreement. Hence, in IPR licenses agreement, the terms & conditions need

careful drafting.

b Explain in brief the civil remedies in enforcing intellectual property rights.

About Enforcing IPR: (1 marks)1. Every right holder under the IPR is subject to the right to seek review by a judicial

authority. These rights of the defendant should be an action without prejudice.

2. In case of infringing cases the authority can dispose these infringing goods as per

their rights. Hence only in exceptional circumstances related to infringing goods

these need not be disposed.

Civil remedies:- (All 6 points---4 marks) 1.

The right holders concerning to the enforcement of IPR has to provide a written

notice within a stipulated timeframe to the defending party.

2.

Parties shall be allowed to have representatives to fight their cases individually.

3. All parties during proceedings are entitled to their claims and need to present

relevant evidence.


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4. These procedures provide identification and protection of confidential

information.

5. The opposing party in appropriate cases needs to produce evidence which

specifies the situation related to the case.

6. In cases where the parties are not allowed to access their goods in such cases the

judicial authorities make the final decisions based on the evidences presented bythe parties who are adversely affected by the denial of access to information.

c Explain practical aspects of licensing.

About Practical aspects of Licensing (2 marks)Practical aspects of Licensing permission from one person to another to undertake some

activity a license agreement is formal and is in a written format which legally abides all

the rules and regulations of the national law in this country .

A license agreement includes two parties the licensor and the licensee.

The licensor is the one who owns the intellectual property and agrees this property and

agrees this property to be use by another person. The licensee is the one who receives the

right to use the intellectual property for exchange of payment .Hence , a license in as anagreement which is in partnership between IP owner ( licensor ) and the authorized user

( licensee ) under certain conditions for which monetary compensations paid .Thus, a

license grants the licensee the rights to use property but without transferring the

ownership of the property.

The Intellectual property effective conditions [Determination Factor] (3 factors---3

marks)Intellectual property License can be effective if 3 conditions are met.

1) The licenser or must be the owner of the property.

2)

The IP must be protected by the law or at least by eligible protection.

3)

The license must specify the rights of the licensee and the payment required that

need to be paid for the IP assets which are given in exchange as per the license

agreement which is clearly stated.

d Classify and explain the licensing agreement.

Five types with brief explanation---5 marksA licensing agreement is a partnership between an IP owner(licensor) & someone

who is authorized to use such rights (licensee), in exchange for an agreed payment(

fee or royalty). A variety of such licensing agreements are available, which may

be broadly categorized as follows:

Technology license Joint venture license

Franchising or

trade-mark license

Copyright license

In practice, sometimes all IP rights form the part of one agreement. These types of

agreements are often observed in mergers & acquisitions, Joint ventures or take overs.

In the international context, a formal licensing agreement is possible only if the IPR

licensor, who wishes to license, is also protected in the other country or countries of

interest. If IP is not protected in other country or countries then licensing in that country

is not possible as licensor would have no legal right to put any restrictions on its use by

any other party.


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Thus the basis for enforcement of patent rights is established at the start of the

patenting process when the patent specification is written by the inventor or the

inventor’s patent attorney. The examination process in the Patent Office can

modify the original wording. The inventor will normally try to avoid any

modification which will result in a limitation of the scope of protection, for any

reduction in the scope of protection makes it easier for a competitor to avoidinfringement. If a competitor can easily supply the market with something that is

equivalent to the invention, but does not infringe the patent, then the patent may

be of limited commercial value. Patent Office examiners should try to remember

this when an applicant for a patent steadfastly resists amending his claims in order

to overcome an objection, but instead tries to deal with the objection by argument.

While acceding to an amendment might lead to the early grant of a patent on the

application, it may also lead to a patent right of doubtful commercial utility.

Evaluating Validity and Infringement of a Patent

Having assessed the scope of the patent right, the next task is for the patentee to

decide if there is infringement. Before committing himself to the financial risk of

a patent case — which can be among the most time-consuming and expensive ofall forms of litigation — a patentee, unless he is very wealthy and relaxed about

money, must make some attempt to forecast whether he can be successful.

The issue of infringement is very rarely considered on its own. Patents, like other

forms of intellectual property, do not only affect the parties to a dispute; they have

an effect on the public at large. This being the case, it is normally considered that

a patent which can be shown to be invalid cannot be enforceable. In spite of the

examination of patent applications during prosecution, no patent system guarantees

the validity of a granted patent. In a patent enforcement action, therefore, a

defendant will usually add to any defense of non-infringement a further defense,

often in the form of a counterclaim, that the patent is invalid and hence notenforceable even if infringed. In some jurisdictions, the issues of infringement and

validity are heard together. In others, the question of validity is heard separately

by a different court or it may be referred to the Patent Office.

Because of the principle that no invalid patent should be enforceable, the defendant

in a patent action is usually allowed to bring in evidence of invalidity at any stage

of the proceedings, and in some jurisdictions even during the trial itself. As a result,

the position of the patentee during patent enforcement proceedings tends to

deteriorate as a defendant makes searches and often finds evidence which is

relevant to validity.

d

What are the different roles of Certifying Authorities? Explain.Certifying Authority (any 3 roles---3 marks)

(1) Any person may make an application to the Certifying Authority for the issue of a

Digital Signature Certificate in such form as may be prescribed by the Central

Government.

(2) Every such application shall be accompanied by such fee not exceeding twenty-five

thousand rupees as may be prescribed by the Central Government, to be paid to the

Certifying Authority Provided that while prescribing fees under sub-section (2) different

fees may be prescribed for

Different classes of applications.

(3) Every such application shall be accompanied by a certification practice statement or

where there is no such statement, a statement containing such particulars, as may bespecified by regulations.


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(4) On receipt of an application under sub-section (1), the Certifying Authority may, after

consideration of the Certification practice statement or the other statement under sub-

section (3) and after making such enquiries as it may deem fit, grant the Digital Signature

Certificate or for reasons to be recorded in writing, reject the application :

Provided that no Digital Certificate shall be granted unless the Certifying Authority is

satisfied that-(a) the application holds the private key corresponding to the public key to be listed

in

The Digital Signature Certificate

(b) the applicant holds a private key, which is capable of creating a digital

signature;

(c) the public key to be listed in the certificate can be used to verify a digital

signature affixed by the private key held by the applicant : Provided further that no

application shall be rejected unless the applicant has been given a reasonable

opportunity of showing cause against the proposed rejection.

What does CA should certify: (4 points---2 marks)A Certifying Authority while issuing a Digital Signature Certificate shall certify that- (

(a) it has complied with the provisions of this Act and the rules and regulations made there

under;

(b) it has published the Digital Signature Certificate or otherwise made it available to such

person relying on it and the subscriber has accepted it;

(c) the subscriber holds the private key corresponding to the public key, listed in the Digital

Signature Certificate;

(d) the subscriber's public key and private key constitute a functioning key pair;

(e) the information contained in the Digital Signature Certificate is accurate; and

(f) it has no knowledge of any material fact, which if it had been included in the Digital

Signature Certificate would adversely affect the reliability of the representations made in

clauses (a) to (d).

6 Attempt any two of the following: 10

a When was IT Act, 2000 amended? Enlist the major changes incorporated in the

amendments.

Ans:

Introduction--about the need of IT Act and its amendments: (1 mark)

An Act to provide legal recognition for transactions carried out by means ofelectronic data interchange and other means of electronic communication, commonly

referred to as “electronic commerce”, which involve the use of alternatives to paper-

based methods of communication and storage of information, to facilitate electronic

filing of documents with the Government agencies. It is considered necessary to give

effect to the said resolution and to promote efficient delivery of Government services

by means of reliable electronic records. BE it enacted by Parliament in the Fifty-first

Year of the Republic of India.

Two major changes---Sec 1 and Section 2(2 marks each---4 marks)

Sec 1. Short Title, Extent, Commencement and Application (any 4 points---2marks)


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(1) This Act may be called the Information Technology Act,2000. [As Amended by

Information Technology (Amendment) Act 2008]

(2) It shall extend to the whole of India and, save as otherwise provided in this Act, it

applies also to any offence or contravention hereunder committed outside India

by any person.

(3)

It shall come into force on such date as the Central Government may, bynotification, appoint and different dates may be appointed for different provisions

of this Act shall be constructed as a reference to the commencement of that

provision.

(4) Nothing in this Act shall apply to documents or transactions specified in the First

Schedule by way of addition or deletion of entries thereto.

(5) Every notification issued under sub-section (4) shall be laid before each House of

Parliament.

Sec 2. Definitions (any 4 terms---2 marks)

(1) In this Act, unless the context otherwise requires,

(a) “Cyber Appellate Tribunal” means the Cyber Appellate * Tribunal

established under sub-section (1) of section 48 (* “Regulations” omitted) (b)

“Cyber café” means any facility from where access to the Internet is offered

by any person in the ordinary course of business to the members of the

public.

(c) “Digital Signature Certificate” means a Digital Certificate” means a Digital

Certificate issued under sub-section (4) of section 35.

(d) “Electronic Record” means data, record or data generated, image or sound

stored, received or sent in an electronic form or micro film or computer

generated micro fiche.

(e) “Electronic Signature” means authentication of any electronic record by a

subscriber by means of the electronic technique specified in the second

schedule and includes digital signature.

(f)

“Electronic Signature Certificate” means an Electronic Signature Certificate

issued under section 35 and includes Digital Signature Certificate”.

(g) “Indian Computer Emergency Response Team” means an agency established

under sub-section (1) of section 70 B.

(h) “Information” includes data, messages, text, images, sound, voice, codes,

computer programmes, software and databases or micro film or computer

generated micro fiche.

b What does chapter 5 of IT Act, 2000, “Secure Electronic records & secure digital

signatures” specify? Explain briefly. Ans :

Secure electronic record : (1 mark)Where any security procedure has been applied to an electronic record at a specific

point of time. Then such record shall be deemed to be a secure electronic record from

such point of time to the time of verification.

Secure digital signature : (2 marks)

If, by application of a security procedure agreed to by the parties concerned, it can be

verified that a digital signature, at the time it was affixed, was-

unique to the subscriber affixing it capable of identifying such subscriber.


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created in a manner or using a means under the exclusive control of the subscriber

and is linked to the electronic record to which it relates in such a manner that if the

electronic record was altered the digital signature would be invalidated then such

digital signature shall be deemed to be a secure digital signature.

Security procedure. (2 marks)

The Central Government shall for the purposes of this Act prescribe the security procedure having regard to commercial circumstances prevailing at the time when the

procedure was used, including-

the nature of the transaction.

the level of sophistication of the parties with reference to their technological

capacity.

the volume of similar transactions engaged in by other parties.

the availability of alternatives offered to but rejected by any party.

the cost of alternative procedures, and

the procedures in general use for similar types of transactions or communications.

c What are the conditions under which Intermediary gets exemption from liability?

Who are intermediaries: (1 mark)Intermediaries, such as hosts, transitory communication systems, information location

tools etc are widely recognized as essential mechanism in the wheel of exercising the

right to freedom of expression on the Internet. Most major jurisdictions around the world

have introduced legislations for limiting intermediary liability in order to ensure that this

wheel does not stop spinning.

Act and its provision: (1 mark)India amended Section 794 of the Information Technology Act 2000(hereinafter referred

to as the Act) in 2008 and joined the club of nations that limit intermediary liability.

Though the guiding principles for intermediary liability policy in India are derived from

the European Union E-Commerce Directive , such principles have been incompletely,

incorporated into the Rules without adapting them to the requirements of India in the

current context.

Conditions under which Intermediary gets Exemption: (6 conditions---3 marks)a) Intermediary may claim that the takedown notice region is not applicable to

search engines as they fall within the scope of the exemption offered by Rule

3(3)provision(a). The rule includes temporary or transient or intermediate

storage of information automatically within the computer resource as an intrinsic

feature of such computer resource.

b)

If the system of contextual advertisements has been subcontracted byIntermediary to another intermediary, as a result of which, Intermediary does not

have any particular control over the advertisements. Thus he exempted.

c) If the author had not established himself as an affected party then the

intermediary will be exempted from liability

d) If the intermediary builds sufficient grounds to claim benefit of the exemption in

Rule 3(3) provision(a). This provision is essentially meant to provide an

exemption for techniques such as packet switching, statistical multiplexing or any

other store and forward techniques.

e) If an intermediary had not appointed a Grievance Officer as required under Rule

3(11) or modified its content policy as required under Rule 3(2) then he or she

may be exempted.


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f) Intermediary will not get exemption if he or she deletes the comments from the

takedown notice intentionally. The comments include the following:

(i) The comment on the impugned URL is "racially and ethnically objectionable"

as provided in Rule 3(2)(b) of the Rules

(ii) The comment on the impugned URL is "hateful" as provided in Rule 3(2)(b)

of the Rules.(iii) The comment on the impugned URL is "disparaging" as provided in Rule

3(2)(b) of the Rules.

(iv) The comment on the impugned URL is "defamatory" as provided in Rule

3(2)(b) of the Rules.

(v) The comment on the impugned URL "violates any law for the time being in

force" as provided in Rule 3(2)(e) of the Rules read with Sections 124A, 153A,

153B, 292A, 295A and 499 of the Indian Penal Code 1860.

d What does chapter 9 of IT Act, 2000, “Penalties & Adjudication” cover?

Five major points of focus. (5 marks)

1.Penalty of damage of computer, computer system, etc.If any person without permission of the owner or any other person who is incharge of a

computer, computer or computer network,-

(a) accesses or secures access to such computer, computer system or computer network;

(b) downloads, copies or extracts any data, computer data base or information from such

computer, computer system or computer network including information or data held or

stored in any removable storage medium;

(c) introduces or causes to be introduced any computer contaminant or computer virus

into any computer, computer system or computer network;

(d) damages or causes to be damaged any computer, computer system or computer

network, data, computer data base or other programmes residing in such computer,

computer system or computer network;

(e) disrupts or causes disruption of any computer, computer system or computer

network;

(f) denies or causes the denial of access to any person authorised to access any computer,

or computer network by any means ;

(g) provides any assistance to any person to facilitate access to a computer, computer

system or computer network in contravention of the provisions of this Act, rules or

regulations made thereunder ;

(h) charges the services availed of by a person to the account of another person by

tampering with or manipulating any computer, computer system, or computer network,

he shall be liable to pay damages by way of compensation not exceeding one crorerupees to the person so affected.

Explanation.- For the purpose of this section,-

(i) "computer contaminant" means any set of computer instructions that are designed-

(a) to modify, destroy, record, transmit data or programme residing within a computer,

computer system or computer network; or

(b) by any means to usurp the normal operation of the computer, computer system, or

computer network;

(ii) "computer data base" means a representation of information, knowledge, facts,

concepts or instructions in text, image, audio video that are being prepared or have been

prepared in a formalised manner or have been produced by a computer, computer system

or computer network and are intended for use in a computer, computer system or computernetwork;


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(iii) "computer virus" means any computer instruction, information, data or programme

that destroys, damages, degrades or adversely affects the performance of a computer

resource or attaches itself to another computer resource and operates when a programme,

data or instruction is executed some other event takes place in that computer resource;

(iv) "damage " means to destroy, alter, delete, add, modify or rearrange any computer

resource by any means.

2. Penalty for failure to furnish information, return, etc.

If any person who is required under this Act or any rules or regulations made thereunder

to-

(a) furnish any document, return or report to the Controller or the Certifying Authority

fails to furnish the same, he shall be liable to a penalty not exceeding one lakh and fifty

thousand rupees for each such failure;

(b) file any return or furnish any information, books or other documents within the time

specified therefore in the regulation fails to file return or furnish the same within the time

specified therefor in the regulations, he shall be liable to a penalty not exceeding five

thousand rupees for every day during which such failure continues;(c) maintain books of account or records, fails to maintain the same, he shall be liable to

a penalty not exceeding ten thousand rupees for every day during which the failure

continues.

3. Residuary penalty

Whoever contravenes any rules or regulations made under this Act, for the contravention

of which no penalty has been separately provided, shall be liable to pay a compensation

not exceeding twenty-five thousand rupees to the person affected by such contravention

or a penalty not exceeding twenty-five thousand rupees.

4. Power to adjudicate

(1) For the purpose of adjudging under this Chapter whether any person has committed a

contravention of any of the provisions of this Act or of any rule, regulation, direction or

order made thereunder the Central Government shall, subject to the provisions of sub-

section (3), appoint any officer not below the rank of a Director to the Government of

India or an equivalent officer of a State Government to be an adjudicating officer for

holding an inquiry in the manner prescribed by the Central Government.

(2) The adjudicating officer shall, after giving the person referred to in sub-section (1) a

reasonable opportunity for making representation in the matter and if, on such inquiry,

he is satisfied that the person has committed the contravention, he may impose such

penalty or award such compensation as he thinks fit in accordance with the provisions ofthat section.

(3) No person shall be appointed as an adjudicating officer unless he possesses such

experience in the field of Information Technology and legal or judicial experience as

may be prescribed by the Central Government.

(4) Where more than one adjudicating officers are appointed, the Central Government

shall specify by order the matters and places with respect to which such officers shall

exercise their jurisdiction.

(5) Every adjudicating officer shall have the powers of a civil court which are conferred

on the Cyber Appellate Tribunal under sub-section (2) of section 58, and-

(6) all proceedings before it shall be deemed to be judicial proceedings within

the meaning of sections 193 and 228 of the Indian Penal Code;


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(7) shall be deemed to be a civil court for the purpose of section 345 and .46 of the Code

of Criminal Procedure, 1973.

5. Factors to be taken into account by the adjudicating officer

While adjudging the quantum of compensation under this Chapter, the adjudicating

officer shall have due regard to the following factors, namely :-

(a) the amount of gain of unfair advantage, wherever quantifiable, made as a result of thedefault;

(b) the amount of loss caused to any person as a result of the default;

(c) the repetitive nature of the default.

7 Attempt any three of the following: 15a

List out the basic principles of design rights.

The basic principles of design rights are: (Any 5 rights with brief explanation---5

marks)

1.

The rights of exclusive use of design is registered under the Designs Act 2000.This Act is enforced from the date of registration.

2. If the Design Act has been registered, it can be further extended from the original

period of registration.

3. Right to protect the design from piracy which causes infringement. Any person

responsible for infringing a registered design and found guilty is liable to a fine

of rupees not exceeding 25000.

4. The registered owner has the right to file a suite for recovery of damages so that

his reputation does not get affected and he can recover this by getting an amount

not exceeding Rs. 50000.

5.

The registration of design includes the provisions of section 20 of Design Act

2000, which includes that the government can use certain design under various

circumstances when the article is not made available to the public at reasonable

prices.

6. Section 11 of Designs Act 2000 provides the term for registration which may be

extended to further 5 years till a maximum period of 15 years.

b Explain in brief the enforcement of data protection.

(All 6 points with brief explanation---5 marks)

If the information commissioner finds that the DPA has been breached by aDC, he serves an enforcement notice on DC

The notice indentifies the breach or commission, and specifies how to correctit

Failure to comply is an offence

However, a DC may appeal t the DP tribunal

With the approval of the director of Public Prosecutions, legal

proceedings may follow, which could result is a fine.

Enforcement data protection act in media.

The DPA has special provision for journalism, and artistic or literary

purposes

Basically, journalists may hold personal data for journalistic

purposes only if the data are necessary to reconcile the rights

to privacy with the rules governing freedom of expression.


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So, investigable journalists & political satirists or commentators are not

treated as Data Controllers

Enforcement Data protection in internet

The UK/EU legislation seems fairly strong. But can trans-border transfer of

data

c What are the rights granted for registration of design?

Ans: (5 rights---5 marks)1. A person has the right for exclusive use of the design which is subject to the

provision of Design Act, 2000. Hence the Design registered under this act can be

used from the date of registration.

2. If the design provision gets expired then the applicant can extend the period of

design by paying the prescribed fees.

3. Every person has a right to protect the design from piracy. Any person

responsible for infringing the registered design then he is liable to pay a fine of a

sum not exceeding 25,000.

4.

Under section 20 of the design Act, 2000. There are exceptions in case of using

the design related to the government. Hence the government can use the

registered design which prohibits other person to use this design under certain

circumstances

5. Section 11 of the Design Act, 2000 has provided extension period if the

registered design gets expired. Hence the maximum period of extending the

registered design is for 15 years

d Explain how licensing for technology is considered.

Ans: (4 points---4 marks)

1.

By a technology licensing agreement, the licensor authorizes the licensee to use thetechnology under certain agreed terms and conditions.

2. It is therefore, a contract freely entered into between two parties and contains terms &

conditions so agreed upon.

3. Through a technology licensing agreement, it is possible to improve the quality of

existing product or develop and manufacture a new product by using the patents or

trade secrets owned by others.

4. This may also include entering into a new market or extending in the existing market

for a product by acquiring the patent rights.

For example: (1 mark)Tata Steel has obtained a process technology patent for making hybrid rollers used

in sinter plants. This patent is now licensed to Jyoti Cero Rubber to get potentialrevenue over next three years. Looking at the wider market Tata Steel is licensing

this technology to other competent parties.

e Explain Copyright issue in India. Explain Copyright in WWW.

(3 issues with explanation---5 marks

First issue--1 mark

Remaining 2 issues---4 marks)i. The traditional concept of copyright has given place to a more complex

meaning to cope up with the advancements in the nature of works and the

mediums of their expressions that merit protection under the Copyright

Law. Innumerable issues arise in the process of a virtual tug of war between the copyright holders and their infringers. Stringent remedies are


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devised to safeguard the intellectual property rights and amendments have

been made in the legislation governing IPR in India and Information

Technology Act, 2000 has been enacted to be in tune with the

international concerns reflected in the WIPO Treaties and other

International documents.

ii.

The Copyright Act, 1957 has been enacted by the Parliament in theexercise of its legislative powers conferred by Entry 49 of the Seventh

Schedule to the Constitution of India with a view to amend and

consolidate the law relating copyright. As provided in Section 16, no

person shall be entitled to copyright or, any similar right in any work,

whether published or unpublished, otherwise than under and in

accordance with the provisions of this Act or of any other law for the time

being in force.

iii. The Parliament enacted the Information Technology Act, 2000 which

provides legal recognition to electronic record and digital signatures. The

expression “electronic record” as defined by Section 2(1)(t) of that Act

means, data, record or data generated image or sound stored, received orsent in an electronic form or micro film. Tampering with computer source

documents is made an offence under Section 65 of the Act, which

provides that, whoever knowingly or intentionally conceals, destroys or

alters or intentionally or knowingly causes another to conceal, destroy or

alter any computer source code used for a computer, computer

programme, computer system or computer network, when the computer

source code is required to be kept or maintained by law for the time being

in force, shall be punishable with imprisonment upto three years, or with

fine which may extend upto two lakh rupees, or with both.

f.

What is Cyber Appellate Tribunal? What are its powers?

About Cyber Appellate Tribunal: (1 mark)

Procedure and powers of the Cyber Appellate Tribunal (point 1 for 1 mark

Point 2 for 2 marks

Point 3 for 1 mark)

(1) The Cyber Appellate Tribunal shall not be bound by the procedure laid down by the

Code of Civil Procedure, 1908 but shall be guided by the principles of natural justice

and, subject to the other provisions of this Act and of any rules, the Cyber Appellate

Tribunal shall have powers to regulate its own procedure including the place at which itshall have its sitting.

(2) The Cyber Appellate Tribunal shall have, for the purposes of discharging its

functions under this Act, the same powers as are vested in a civil court under the Code of

Civil Procedure, 1908, while trying a suit, in respect of the following matters, namely : -

(a) summoning and enforcing the attendance of any person and examining him on oath;

(b) requiring the discovery and production of documents or other electronic records;

(c) receiving evidence on affidavits;

(d) issuing commissions for the examination of witnesses of documents;

(e) reviewing its decisions;

(f) dismissing an application for default or deciding it ex parte;

(g) any other matter which may be prescribed.


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(3) Every proceeding before the Cyber Appellate Tribunal shall be deemed to be a judicial

proceeding within the meaning of sections 193 and 228, and for the purpose of section 196

of the Indian Penal Code and the Cyber Appellate Tribunal shall be deemed to be a civil

court for the purposes of section 195 and Chapter XXVI of the Code of Criminal

Procedure, 1973.

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