cyber law workshop

8/7/2019 Cyber Law workshop

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CCC- Cyberlaws ConsultingCentre CCC renders cyber legal consultancy, cyber law analytics

and forensic services to its clients world wide. Work experience of handling cybercrime matters with Delhi

Police Delivered training workshops to Delhi police on dealing with

cybercrime investigation cases Recently authored a book titled Cyberlaws in the Information

Technology age published by Lexis Nexis Butterworths thatelucidates the key developments in the field of Cyberlawsacross many important jurisdictionsIndia, United Statesand European nations


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Cyberlaws in the InformationTechnology Age by Karnika Seth


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Presentation plan

This session will introduce the subject ofcyberlaws and describe key features of the

cyberspace and challenges in the online world. Characteristics of cyberspace

Key Challenges in cyberspace

Reasons for rising index of cybercrimes

Introduction to the IT Act,2000


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What is the Cyberspace?

William Gibson in 1980s wrotea science fiction namedNeuromancerwhereincomputer hackers waged war

against secure data. The setting had no physical

existence and was named

Cyberspace by Gibson.

Unique features - dynamic,

borderless space, anonymity,speed, cost effective, markedwith rapid technologicaladvances


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Regulating the Internet..

Proponents of Cyberlaws believethat ones activities on the Internetneed regulation by framing lawsand rules that govern our activitiesin the cyberspace. This branch of

law is termed as Cyberlaws European Union, USA, UNCITAL

framed important laws to governcyberspace

UNCITRAL Model law of e-commerce 1996

EU data protection Directive DMCA Act 1998 in USA

WIPO domain name disputeResolution policy

Critics who advocate no regulationor self regulation in the Virtualspace believe that governmentshould have minimum interferencein regulating the cyberspace and itsuse of surveillance or censorshipmeasures.

John Perry Barlows Declaration ofthe Independence of thecyberspace and David G. Post,The Unsettled Paradox: The

Internet, the State, and the Consent

of the Governed, 5 IND. J. GLOBALLEGAL STUD. 521, 539 (1998)


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Inherent challenges in framingCyberlaws Some early adopters in the US and the West drafted their own legislationsby

either adapting their existing laws in the context of cyberspace or creatingnew laws in respect thereof.

Determining jurisdiction and formation the e-contracts are two key issueson which traditional legal principles have been largely applied by Courtsworldwide . For e.g . Longarm Statutes enacted in US and Minimum Contacts

test.

General consensus that in the e-world, electronic signatures and electronicdocuments are equally legally validas the hand-written signatures or hardcopy paper documents. Model law on Electronic Commerce in 1996promotes application of principle of functional equivalence

India enacted its first law of IT through the IT Act, 2000 based on theprinciples elucidated in the UNCITRAL Model law of e-commerce. Extends towhole of India and also applies to any offence or contravention thereundercommitted outside India by any person {section 1 (2)} read with Section 75


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No Homogenous Cyberlaw Nature of the internet- anonymity

element coupled with no territorialborders and absence of uniform lawposes a challenge to legislators andenforcement authorities

A global consensus with respect tolegal enforcement and internetcensorship against certain offences

such as-Child pornography,Cyberwarfare, threat to nationalsecurity and cyberterrorism

Different countries differ in treatmentof certain other serious issues such asGambling, hatespeech, politicalpropaganda, defamatory matter,pornography on internet

These inturn may be protected by theRight to freedom of speech andexpression


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Tests to Determine Jurisdiction inCyberspace

Zippo sliding scale test (1) ( based on interactivity of a website), Effects test (2) based on where effects of an illegal act are felt), Targeting approach principles (3)( based on whether accused

solicited business in a particular jurisdiction).(1) Zippo Manufacturer v Zippo Dot com 952 F. Supp. 1119

(D.C.W.D. Pa. 1997) (2) Calder v. Jones465 U.S. 783 (1984). (3) People v. World Interactive Gaming714 N.Y.S. 2d 844 (N.Y.Sup.

1999), 1999 N.Y. Misc. LEXIS 425 (S.C. N.Y.1999)


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What is a cyber threat?

From the information security perspective, a threat is definedas the potential to cause an unwanted incident in which an

asset, system or organisation may be harmed.

Cyber threat is a threat that percolates or infiltrates throughthe use of computers , internet or interconnectedcommunication devices and could comprise of informationstealth, cyber warfare, virus attacks, cyber terrorism, hacking

attempts , phising,sabotage, singly or in combination.


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Computer vulnerability Computers store huge amounts of data in small spaces Ease of access Complexity of technology Human error One of the key elements that keeps most members of any society honest is fear of being caught

the deterrence factor. Cyberspace changes two of those rules. First, it offers the criminal anopportunity of attacking his victims from the remoteness of a different continent and secondly,the results of the crime are not immediately apparent.

Need new laws and upgraded technology to combat cyber crimes


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Introduction to Cyber Crime

Computer Crime, E-Crime,Hi-Tech Crime orElectronicCrime is where a computeris

the target of a crime or is themeans adopted to commit acrime.

Most of these crimes are notnew. Criminals simply devisedifferent ways to undertake

standard criminal activitiessuch as fraud, theft, blackmail,forgery, and embezzlementusing the new medium, ofteninvolving the Internet
http://en.wikipedia.org/wiki/Computerhttp://en.wikipedia.org/wiki/Crimehttp://en.wikipedia.org/wiki/Fraudhttp://en.wikipedia.org/wiki/Thefthttp://en.wikipedia.org/wiki/Blackmailhttp://en.wikipedia.org/wiki/Forgeryhttp://en.wikipedia.org/wiki/Embezzlementhttp://en.wikipedia.org/wiki/Internethttp://en.wikipedia.org/wiki/Internethttp://en.wikipedia.org/wiki/Embezzlementhttp://en.wikipedia.org/wiki/Forgeryhttp://en.wikipedia.org/wiki/Blackmailhttp://en.wikipedia.org/wiki/Thefthttp://en.wikipedia.org/wiki/Fraudhttp://en.wikipedia.org/wiki/Crimehttp://en.wikipedia.org/wiki/Computer


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Different Types ofCybercrimes

Cyber crimes

HackingInformation

TheftE-mail

bombing

Salamiattacks

Denial ofServiceattacks

Trojanattacks

Web jacking


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Types of Cyber crimes

Credit card frauds Cyber pornography Sale of illegal articles-narcotics, weapons,

wildlife Online gambling Intellectual Property crimes- software

piracy, copyright infringement, trademarksviolations, theft of computer source code

Email spoofing Forgery Defamation Cyber stalking (section 509 IPC) Phising Cyber terrorism

Crime against persons

Crime against Government

Crime against property


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Categories of

IP rights

Utility model/Designs

Plant Breeders

rights

Geographical

Indications

Trade secrets

Trademark &

domain namesCopyright

Patent


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IPR

Patents

Industrial Design

Trademarks

Works of Art

Literature

Music

Broadcasting

Dramatics Works

Sound Recording

Computer ProgramsGeographical

Indications

Classification of IPR

Intellectual Property

Co

pyright


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Different Acts governing IPassets

Trade Marks

The Patents Act, 19 70Patents

The Copyright Act, 1957Copyright

Designs

The Protection of plant varieties andFarmers Right Act, 2001

Geographical Indications

Plant Varieties

Semi conductor IC layout designAct,2000

The Designs Act, 2000

The Geographical IndicationsOf Goods Act, 1999

The Trade Marks Act, 1999

Semi conductor IC layout


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IP- Duration of Term ofProtection

Patents (20 years) Trademarks (10 years + renewals) Copyrights in published literary, dramatic, musical, and

artistic works (Lifetime of author +60 years). Copyright in photographs ,cinematographic film, sound

recordings (60 years from year in which it was published) Broadcast reproduction right-(25 years from the beginning

of the calendar year next following the year in which thebroadcast is made.)

Performers right-(25 years from the beginning of thecalendar year next following the year in which theperformance is made)

Industrial designs (10 years+ renewal permitted once for 5years )

Trade-secrets and know how collectively proprietarytechnology (contract period-protected by contract provisions,doctrine of breach of trust)


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There are multiple perspectives aboutintellectual property rights on the Internet Nature of internet- Borderless space, ease of flow of information,

promptness, anonymity, easy to share, distribute and copyinformation at very less cost.

These multiple perspectives to IPR include: "Information Wants to be Free." These people believe there should

be no copyrights or other protections of intellectual property;

everything made publicly available should be public domain. "Right of Attribution." These people believe that the only rights

owed to authors and creators is the right of attribution; otherwise, allinformation is free.

"Limited Use Rights." These people believe that copyright hasvalidity but minor infringing behavior, whether "fair use" or not, shouldbe legal.

"Strong IP Regimes." These people adhere strictly to intellectualproperty protections.

(Note that there is also the moral rights perspective, which existson a different scale but is most closely aligned with the Strong IPRegimes category.)


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The question of new, sui generis form of protection wasseriously considered in the 1970s, but copyright protectionbecame the norm. the TRIPS Agreement requires thatComputer program, whether in source or in object code, shallbe protected as literary works under the Berne Convention.Case on point-Ibcos computers v BarclaysFinanceLtd(1994)FSR 275,Apple computer inc vsFranklinComputerCorpn714F2d1240(3rdCir 1983).

India party to Berne convention, Paris convention andUCC1952.

India-Copyright Act-Section 2(o)-computer programme is

literary work.section 2(ffc) defines computerprogramme.,section 2(ffb) defines computer-copyright tangiblestorage in any medium

Protecting Copyright in the digitalmillennium


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Digital downloads andreproduction & display rights

Kelly v Arriba Soft Corp 280 F3d 934(9thCir2002)

Plaintiff leslie kelly had copyrighted many imagesof American west. Some were located on herwebsite. Defendant produced thumbnail picturesin its search engines search results and byclicking on them, larger version could be viewedwithin Arribas page.

Circuit court held, use of thumbnails is fair usebut display of larger image within its webpages isviolation of authors exclusive right to publiclydisplay his works.


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Passing off, Trademarkinfringement and dilution

Passing off

No body has any right to represent his goods as the goods ofsomebody else

Lord Halsbury

Passing off action allows trader A to prevent trader B from passing theirgoods off as if they were As.

Passing off is available where there is a prospect of confusion of identitythrough the unauthorized use of similar marks or get up, and such use

damages, or is likely to damage the goodwill and reputation of abusiness. Passing off can apply to virtually any name, mark, logo or get-up which distinguishes a company, business, product or service from theother. Passing off attracts doctrine of strict liability: the intention of theperson passing itself off as another trader is irrelevant.


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Attributes of Passing Off

Lord diplock in Erven Warnink v J Townend1979

(2)AllER 927-To Succeed in an action for passing

off, a claimant should establish that:

The claimant has a goodwill

The misrepresentation damages or islikely to damage the goodwill of theclaimant.

Passing off is made in the course of trade.

The defendant made a

misrepresentationthat is likely to deceive the public.


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Example of passing off action

Domain name similar to that of known companies are usedby persons in order to promote their products or services.

A company creates a website to promote his business ofsoft drinks and deliberately gives it the domain namewww.cocacola.com , now this domain name is bound toconfuse and mislead the customers as that of the well

known Coca-Cola and encourage them to buy the productwhich infact is of another company. This can be termed aspassing off.
http://www.cocacola.com/http://www.cocacola.com/


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Cases on Passing off

Yahoo! Inc. vs Akash Arora(1999)

FACTS: The defendant installed a website Yahooindia.com nearlyidentical to plaintiffs renowned yahoo.com and provided servicessimilar to those of the plaintiff.

DECISION: The Delhi High Court granted an injunction restraining

defendant from using yahoo either as a part of his domain name oras a trade mark .It held that trade mark law applies with equal forceon the internet as it does in the physical world.


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Cases on Passing off

Yahoo! Inc. vs Akash Arora(1999)

FACTS: The defendant installed a website Yahooindia.com nearlyidentical to plaintiffs renowned yahoo.com and provided servicessimilar to those of the plaintiff.

DECISION: The Delhi High Court granted an injunction restraining

defendant from using yahoo either as a part of his domain name oras a trade mark .It held that trade mark law applies with equal forceon the internet as it does in the physical world.


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Precedents on Passingoff

In the case ofMarks & Spencer Plc and others v. One in aMillion Ltd. and others, the deputy judge of the EnglishCourt held that:

"Any person who deliberately registers a domain name onaccount of its similarity to the name, brand name or trademark of an unconnected commercial organization mustexpect to find himself on the receiving end of an injunctionto restrain the threat of passing off, and the injunction willbe in terms which will make the name commercially uselessto the dealer.

In the case ofRediff Communication Limited v.Cyberbooth and Ramesh Nahata of Mumbai (1999), theBombay High Court supported an action of passing offwhen the Defendants used the term RADIFF (similar to thename REDIFF of the Plaintiff) to carry on business on theInternet.


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Passing off action under theTrade Marks Act, 1999

A registered Trademark has the backing of

infringement and passing off remedies under

the TMA act.

The Act does not provide for infringement

action in respect of unregistered Trademarks.

Only Passing off remedy is available in caseof unregistered Trademarks.

(Section 27 of TMA Act, 1999).


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Section 29 of the Trademark Act states that when a registered trade mark isused by a person who is not entitled to use such a trade mark under thelaw, it constitutes infringement. A registered trade mark is infringed ,if:-

1. The mark is identical and is used in respect of similar goods or services or

2. The mark is similar to the registered trade mark and there is an identity orsimilarity of the goods or services covered by the trade mark

3. And Such use is likely to cause confusion on the part of the public or islikely to be taken to have association with the registered trade mark.

For example, if you are not the Nike company or authorized by it, it is

an infringement to sell sports clothes called "Nikestuff

Legal remedies under Indian Trademarks Act-

Injunction ,damages, delivery up of infringing goods, destroying infringinggoods and material, etc.

For cases see heading cybersquatting

Satyam infoway vs Sifynet solutions 2004 (6)SCC 145..

Trademark infringement


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Dilution is a trademark law concept forbidding the use of a famous trademarkin a way that would lessen its uniqueness. In most cases, trademark dilutioninvolves an unauthorized use of another's trademark on products that do notcompete with, and have little connection with, those of the trademark owner.For example, a famous trademark used by one company to refer to hair careproducts, might be dilutedif another company began using a similar mark torefer to breakfast cereals orspark plugs.

A trademark is diluted when the use of similar or identical trademarks in othernon-competing markets means that the trademark in and of itself will lose itscapacity to signify a single source. In other words, unlike ordinary trademarklaw, dilution protection extends to trademark uses that do not confuse

consumers regarding who has made a product. Instead, dilution protection lawaims to protect sufficiently strong trademarks from losing their singularassociation in the public mind with a particular product, perhaps imagined ifthe trademark were to be encountered independently of any product (i.e., justthe word Pepsi spoken, or on a billboard).

Dilution
http://en.wikipedia.org/wiki/Trademark_lawhttp://en.wikipedia.org/wiki/Breakfast_cerealhttp://en.wikipedia.org/wiki/Spark_plughttp://en.wikipedia.org/wiki/Pepsi-Colahttp://en.wikipedia.org/wiki/Billboard_%28advertising%29http://en.wikipedia.org/wiki/Billboard_%28advertising%29http://en.wikipedia.org/wiki/Pepsi-Colahttp://en.wikipedia.org/wiki/Spark_plughttp://en.wikipedia.org/wiki/Breakfast_cerealhttp://en.wikipedia.org/wiki/Trademark_law


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Case law on DilutionAvery Dennison Corporation

Vs.

Jerry Sumpton, et al.

Facts: Jerry Sumpton and his company Freeview registered thousands ofdomain names - primarily typical surnames - and used these domain namesto offer "vanity" email addresses to people who want an addressincorporating their name. Two of the names registered included avery.netand dennison.net. Avery Dennison brought suit against Sumpton claimingtrademark dilution.

Decision: The Ninth Circuit held that Avery Dennison failed to meet the requiredof elements of dilution. The court concluded that the Avery and Dennisontrademarks were not famous. Although the court acknowledged that thetrademarks had reached a level of distinctiveness, dilution requires that amark be both distinctive and famous. According to the court for a mark to

meet the "famousness" element of dilution it must be truly prominent andrenowned. Additionally, the court held that Avery Dennison failed to meet asecond requirement for dilution: commercial use. Commercial use underthe dilution statute requires that the defendant use the trademark as atrademark, capitalizing on its trademark status.


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Cases on Dilution

Teletech Customer Care Management, Inc.

vs

Tele-Tech Company, Inc

Facts: The plaintiff, a large provider of telephone and Internetcustomer care services, had been continuously using themark for approximately fifteen years and had waged anextensive promotion and advertising campaign for itsservices. The defendant, a contractor providing engineeringand installation services to the telecommunications industry,registered the domain name teletech.com.

Decision: The court held that there was no likelihood ofconfusion, because the parties businesses were sodissimilar. However, the court found dilution, ruling thatTELETECH was a famous mark, and ordered the defendantto transfer the domain name to the plaintiff.


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CASES ON FRAMING

The Washington Post Company et al.vs.

Total News, Inc.

Facts: As a one-stop news site, TotalNews.com linked to many newssites, but kept a frame, or border around them, which the news sitesargued made it look like the content was from TotalNews.com,

changed the ad layout on the page, and kept totalnews.com as theaddress for book marking purposes.

In the complaint the news companies claimed that TotalNewsmisappropriated their trademarked and copyrighted material, therebyengaging in a host of crimes including unfair competition, federaltrademark dilution, and trademark and copyright infringement. Thenews organizations said that their websites, as they appeared within

the Totalnews frames, were substantially altered from the form inwhich they intended them to appear to users and that it was donesolely for Totalnews' profit.

TotalNews argued that the case was in essence about its freedom to link,which it claimed was a fundamental right on the Internet.

Status: The court never decided the TotalNews case because the partiessettled. Totalnews agreed to remove the frame.
http://www.totalnews.com/http://www.jmls.edu/cyber/cases/total1.htmlhttp://www.jmls.edu/cyber/cases/total1.htmlhttp://www.totalnews.com/


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Cybersquatting

Panavision International

vs.

Toeppen

Facts: Toeppen engaged in dilution by cyber squatting in

registering the domain panavision.com offered to sell thedomain to the plaintiff for $13,000. Mr. Toeppen put a map ofPana, Illinois up on his panavision.com website.

Decision: The Ninth Circuit upheld the lower courts conclusionthat Mr. Toeppen was engaged in extortive efforts and wasdiluting the famous PANAVISION mark. Mr. Toeppens cause

was not helped by the fact that he had registered manydomains containing known brands, such as deltaairlines.com,neimanmarcus.com, eddiebauer.com and lufthansa.com.


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Database Protection

Copyright protection to tables, compilations and computer databases does notextend to any data itself, but only to the way in which it is organized. Thisfundamental copyright principle is expressed in Article 10.2 of the TRIPSAgreement: Compilations of data or other material, whether in machine readableor other form, which by reason of the selection or arrangement of their contentsconstitute intellectual creations shall be protected as such. Such protection,which shall not extend to the data or material itself, shall be without prejudice to

any copyright subsisting in the data or material itself. UK Database Protection Act, EU Directive on Data base protection India has no separate legislation on database protection. Provisions of copyright

Act, IT Act, IPC prevail.

The WIPO Copyright Treaty(WCT), although not binding on WTO members thathave not joined the WCT, similarly provides in Article 4:

"Computer programs are protected as literary works within the meaning ofArticle 2 of the Berne Convention. Such protection applies to computerprograms, whatever may be the mode or form of their expression."
http://en.wikipedia.org/wiki/WIPO_Copyright_Treatyhttp://en.wikipedia.org/wiki/WIPO_Copyright_Treaty


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IT Act, 2000

Enacted on 17thMay 2000- India is

12th nation in theworld to adoptcyber laws

IT Act is based on

Model law on e-commerce adoptedby UNCITRAL


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Objectives of the IT Act

To provide legal recognition for transactions:- Carried out by means of electronic data

interchange, and other means of electronic

communication, commonly referred to as "electroniccommerce

To facilitate electronic filing of documents withGovernment agencies and E-Payments

To amend the Indian Penal Code, Indian EvidenceAct,1872, the Bankers Books Evidence Act1891,Reserve Bank of India Act ,1934


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Extent of application

Extends to whole of India and also applies to anyoffence or contravention there under committedoutside India by any person {section 1 (2)} read withSection 75- Act applies to offence or contravention

committed outside India by any person irrespectiveof his nationality, if such act involves a computer,computer system ornetwork located in India

Section 2 (1) (a) Access means gaining entry

into ,instructing or communicating with the logical,arithmetic or memory function resources of acomputer, computer resource or network


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Main Features of IT Act,2000

Conferred legal validity and recognition toelectronic documents & digital signatures

Legal recognition to e-contracts

Set up Regulatory regime to superviseCertifying Authorities Laid down civil and criminal liabilities for

contravention of provisions of IT Act,2000

Created the office of Adjudicating Authority toadjudge contraventions


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Important definitions added inamended Act

Section 2 (ha)- communication device-includescell phones, PDA,etc

Section 2 (j) computer network

interconnection through wireless added Section 2 (na) cybercafe

Section 2(w)- intermediary- includes searchengines, web hosting service providers, online

auction sites,telecom service providers etc


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IT Act ,2000 v 2008-Electronic Signatures

cyber law workshop

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