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Governing TechnologyGoverning Technologythrough Law:through Law:
Issues and ConcernsIssues and ConcernsA. B. SurajA. B. Suraj
PGP Business LawPGP Business Law20122012
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Session ObjectivesSession Objectives
To appreciate the importance of and theTo appreciate the importance of and the
criteria to recognize, establish andcriteria to recognize, establish andenforce intellectual property rightsenforce intellectual property rights
To understand the prevalent legalTo understand the prevalent legalprinciples of Cyber Lawprinciples of Cyber Law
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Relevant IssuesRelevant Issues
Lack of internationally coordinated legal frameworkLack of internationally coordinated legal frameworkor enforcement mechanismor enforcement mechanism Relevance of TRIPs and procedures; JurisdictionRelevance of TRIPs and procedures; Jurisdiction
Regulating use of technology ever changingRegulating use of technology ever changingstandards and concernsstandards and concerns Uniformity in standardsUniformity in standards
Emergence of specialized forms of legal institutionsEmergence of specialized forms of legal institutions Special Courts/TribunalsSpecial Courts/Tribunals
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Intellectual PropertyIntellectual Property
RightsRights
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IPRs Basis & RationaleIPRs Basis & Rationale
Economic (and technological) rationale Economic (and technological) rationale aids overall developmentaids overall development
Social benefits enriches Public DomainSocial benefits enriches Public Domainand furthers Basic Researchand furthers Basic Research
IPRs are legally monopolistic need to beIPRs are legally monopolistic need to befairly enforced/regulatedfairly enforced/regulated
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Forms of IPRsForms of IPRs
Patents atents Patents Act, 1970Patents Act, 1970
Copyrights opyrights Copyright Act, 1957Copyright Act, 1957 Trade Marks rade Marks Trade Marks Act, 1999Trade Marks Act, 1999 Industrial Designs ndustrial Designs Designs Act, 2000Designs Act, 2000
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Forms of IPRs Forms of IPRs
Layout Designs of ICs ayout Designs of ICs SemiconductorSemiconductorIntegrated Circuits Layout-Design Act, 2000Integrated Circuits Layout-Design Act, 2000
Geographical Indications eographical Indications GeographicalGeographicalIndications of Goods (Registration andIndications of Goods (Registration andProtection) Act, 1999Protection) Act, 1999
Plant varieties lant varieties Protection of PlantProtection of PlantVarieties and Farmers Rights Act, 2001Varieties and Farmers Rights Act, 2001
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Forms of IPRs Forms of IPRs
Traditional Knowledge raditional Knowledge partly bypartly byBiological Diversity Act, 2002Biological Diversity Act, 2002
Turmeric and Neem disputesTurmeric and Neem disputes
Basmati and Yoga controversyBasmati and Yoga controversy
Trade Secretsrade Secrets Contractual no Contractual nolegislation in Indialegislation in India
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Evolution of IPR regimeEvolution of IPR regime
Early 17th Century Monopolies StatuteEarly 17th Century Monopolies Statute Maximum flexibility to national governments noMaximum flexibility to national governments no
global enforcementglobal enforcement
Commerce based; not invention as motiveCommerce based; not invention as motive
Paris Convention (1883); Berne ConventionParis Convention (1883); Berne Convention(1886); Madrid Agreement (1891)(1886); Madrid Agreement (1891) Minimum obligations but with flexibilitiesMinimum obligations but with flexibilities
National Treatment; and Reciprocal obligations National Treatment; and Reciprocal obligations though not mandatedthough not mandated
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TRIPs RegimeTRIPs Regime
TRIPs (1995) RIPs (1995) common minimumcommon minimuminstitutional framework what aboutinstitutional framework what aboutflexibilities?flexibilities? Scope of Patentscope of Patents exclusions exclusions Patentabil ity criteriaatentabil ity criteria interpretative interpretative
contentcontent
Enforcement mechanismsnforcement mechanisms Civil and Civil andCriminal remediesCriminal remedies
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TRIPs Regime TRIPs Regime
Salient FeaturesSalient Features Basic Principlesasic Principles
MFN status; National TreatmentMFN status; National Treatment
Forms of IPRs and bases oforms of IPRs and bases ofprotectionrotectionAiming for uniformityAiming for uniformity
Multilateralism impact on national lawsMultilateralism impact on national laws
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TRIPs Features TRIPs Features
Special Provisions for Developingpecial Provisions for DevelopingnationsationsAccent on technology transfer & promotionAccent on technology transfer & promotion
Enforcement Mechanismsnforcement Mechanisms Civil and Criminal; Border measuresCivil and Criminal; Border measures
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What is a Patent?What is a Patent?
Patent a monopoly right to an inventorPatent a monopoly right to an inventor
20 year period of monopoly granted for20 year period of monopoly granted forinventions that satisfy:inventions that satisfy:
Noveltyovelty Inventive Step or Non-obviousnessnventive Step or Non-obviousness Util ity or industrial applicationtil ity or industrial application
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What can you do with aWhat can you do with a
Patent?Patent? Section 48 of the Patents Act, 1970:Section 48 of the Patents Act, 1970:
MakeMake
UseUse
SellSell DistributeDistribute
ImportImport
the invention within Indiathe invention within India
Effect of Patents only territorialEffect of Patents only territorial
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Patent Law in IndiaPatent Law in India
The Patents Act, 1970The Patents Act, 1970
The Patents Rules, 2003The Patents Rules, 2003
Registering Authority Registering Authority Controller General ofController General ofPatents, Designs and Trade MarksPatents, Designs and Trade Marks HO at HO at
Kolkata Branches at Chennai, Delhi & MumbaiKolkata Branches at Chennai, Delhi & Mumbai
Registration no guarantee of validityRegistration no guarantee of validity
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Subject Matter ofSubject Matter of
PatentsPatents Must relate to any new process and/or aMust relate to any new process and/or a
new product improvements alsonew product improvements alsoconsidered across any field ofconsidered across any field of
technology (TRIPs)technology (TRIPs)
Any process, machine, manufacture, Any process, machine, manufacture,composition of matter or materialcomposition of matter or material
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Non-patentabilityNon-patentability
Exclusions abstract ideas, laws of nature,Exclusions abstract ideas, laws of nature,natural phenomenanatural phenomena
Section 3 enlists :Section 3 enlists : Medical & Treatment procedures;Medical & Treatment procedures; Topography of ICs;Topography of ICs; Traditional Knowledge;Traditional Knowledge;
Mathematical or Business methods;Mathematical or Business methods;
Computer programsComputer programs per seper seor algorithms;or algorithms;
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US Case StudiesUS Case Studies
Gottschalk v. Benson (1972) NO Gottschalk v. Benson (1972) NO unless there is a physical effectunless there is a physical effect
Diamond v. Diehr (1981) YES if part ofDiamond v. Diehr (1981) YES if part ofan otherwise patentable processan otherwise patentable process
State Street Bank (1998) YES usefulState Street Bank (1998) YES usefulcomputation is in itself a tangible resultcomputation is in itself a tangible result
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Patent CooperationPatent Cooperation
Treaty (PCT)Treaty (PCT) Treaty for International Rationalization andTreaty for International Rationalization and
Cooperation in:Cooperation in: Filing;Filing;
Searching;Searching;
Examination; of Patent specificationsExamination; of Patent specifications
Dissemination of technical information contained inDissemination of technical information contained invarious applicationsvarious applications
No grant of international patents proceduralNo grant of international patents proceduralfacilitation ultimate grant by countries onlyfacilitation ultimate grant by countries only
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Patent ApplicationsPatent Applications
Who can apply for a Patent?Who can apply for a Patent?True and first inventor principle idea,True and first inventor principle idea,
effort and disclosureeffort and disclosure
An assignee of rightAn assignee of right Legal representativeLegal representative
Firms/Corporations cannot be inventorsFirms/Corporations cannot be inventors but can apply as assignees or joint but can apply as assignees or jointholdersholders
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Employee EmployerEmployee Employer
relationsrelations Mere contract of employment does not ordinarilyMere contract of employment does not ordinarily
provide any rights to the employerprovide any rights to the employer
Principle of Trusteeship and fiduciary duty mustPrinciple of Trusteeship and fiduciary duty mustbe established by the employerbe established by the employer
If specially employed to exercise inventiveIf specially employed to exercise inventivefaculty then employer is the assignee evenfaculty then employer is the assignee evenover the patentable improvements developedover the patentable improvements developed
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Employee Employer Employee Employer
If specially employed for a purpose butIf specially employed for a purpose butthe invention is not pursuant to it thenthe invention is not pursuant to it thenthe employee owns itthe employee owns it
Comprehensive factual analysis natureComprehensive factual analysis natureand scope of employment; obligations andand scope of employment; obligations andduties arising thereof; conduct ofduties arising thereof; conduct ofemployer and employee; extent of trustemployer and employee; extent of trust
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Employer Employee Employer Employee
UK Patents Act, 1977 Ss. 39-43UK Patents Act, 1977 Ss. 39-43 Reasonably expected of normal dutiesReasonably expected of normal duties
Special or assigned obligationsSpecial or assigned obligations
Fair compensation to the inventor employee Fair compensation to the inventor employee
provided no such specific contract existsprovided no such specific contract exists
Effort and Skill based evaluationEffort and Skill based evaluation
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Effect of Prior DisclosureEffect of Prior Disclosure
USPTO allows for Disclosure Documents USPTO allows for Disclosure Documents accepted and preserved for 2 yearsaccepted and preserved for 2 years Evidence of date of conception of inventionEvidence of date of conception of invention
No effect of an applicationNo effect of an application
Confidentiality ensuredConfidentiality ensured
Declaration of diligence also mandatedDeclaration of diligence also mandated
India strongly discourages prior publication orIndia strongly discourages prior publication ordisclosure results in anticipation prefersdisclosure results in anticipation prefersProvisional ApplicationProvisional Application
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Specifications KeySpecifications Key
StrategiesStrategies Legal, Technical, Commercial strategic draftingLegal, Technical, Commercial strategic drafting
of terms required to meet future demandsof terms required to meet future demands
Corresponding rights of persons involved mustCorresponding rights of persons involved mustbe clarified else, heavy legal suitsbe clarified else, heavy legal suits
Distinguish between old and the newDistinguish between old and the new
Summarize each stage effectively this is apartSummarize each stage effectively this is apartfrom an overall Abstractfrom an overall Abstract
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Remedies and StrategiesRemedies and Strategies
Suit for DamagesSuit for Damages
Suit for Account on Profits and forSuit for Account on Profits and fordamages to be assesseddamages to be assessed
Demand security for value of claim andDemand security for value of claim andcostscosts
Injunction at the end of the trialInjunction at the end of the trial Though not usually granted, even interimThough not usually granted, even interiminjunctioninjunction
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WHAT IS COPYRIGHT?WHAT IS COPYRIGHT?
Statutorily provided privilege to authors,tatutorily provided privilege to authors,aiming towards:iming towards: Creative and Intellectual enrichment of the publicCreative and Intellectual enrichment of the public
Progress of Scientific and useful Arts (literary, artistic,Progress of Scientific and useful Arts (literary, artistic,musical, dramatic, cinematographic films, soundmusical, dramatic, cinematographic films, soundrecordings and now performances & broadcasting)recordings and now performances & broadcasting)
Copyleft emerging notions of open accessCopyleft emerging notions of open access
Bundle of rightsundle of rights right to make copies; right to make copies;communicate to the public; make adaptationscommunicate to the public; make adaptationsand allow translationsand allow translations
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Notions of OriginalityNotions of Originality
Common Law what is not copied, isCommon Law what is not copied, isoriginaloriginal
US & Australia minimum criteria ofUS & Australia minimum criteria ofcreativity and originalitycreativity and originality
Moving towards authors own personalMoving towards authors own personalcreation apart from common stockcreation apart from common stock
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Basic ConceptsBasic Concepts
Authorship & Ownershiputhorship & Ownership labour, skill labour, skilland judgement could be even jointand judgement could be even joint
Films, song-recordings, broadcasts Films, song-recordings, broadcasts entrepreneurship model producersentrepreneurship model producers
Song lyricist, composer, singer, performingSong lyricist, composer, singer, performing
musicians, and the producermusicians, and the producer Government presumed ownership, unlessGovernment presumed ownership, unless
contracted otherwisecontracted otherwise
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Moral Rights to theMoral Rights to the
AuthorAuthor Right to be acknowledged and against anyRight to be acknowledged and against any
false attributionfalse attribution
Right against derogatory treatment of theRight against derogatory treatment of theworkwork
Enforceable even if economic rights haveEnforceable even if economic rights havebeen assigned or licensedbeen assigned or licensed
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Legal FrameworkLegal Framework
Registration not compulsory, but usefulRegistration not compulsory, but usefulwhen copyright is infringed - territorialwhen copyright is infringed - territorial
Indian Copyright Act, 1957Indian Copyright Act, 1957
International recognition:International recognition: Berne Convention (1886) andBerne Convention (1886) and
Universal Copyright Convention (1952)Universal Copyright Convention (1952)
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Civil & CriminalCivil & Criminal
RemediesRemedies Evidentiary registration is best proof Evidentiary registration is best proof
else, presumptions based on publicationelse, presumptions based on publication
Civil remedy enforceable by a DistrictCivil remedy enforceable by a DistrictCourt compensatory and injunctionsCourt compensatory and injunctions
Criminal remedy Metropolitan MagistrateCriminal remedy Metropolitan Magistrateor the JMFC minimum imprisonment andor the JMFC minimum imprisonment andfines offence is cognizablefines offence is cognizable
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Fair Use and DefencesFair Use and Defences
Berne Convention and TRIPs authorizeBerne Convention and TRIPs authorizereproduction of protected works inreproduction of protected works incertain special cases if:certain special cases if:
- it does not conflict with normal- it does not conflict with normalexploitation of the work; andexploitation of the work; and
- it does not unreasonably prejudice the- it does not unreasonably prejudice thelegitimate interests of the authorlegitimate interests of the author
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Some instances of FairSome instances of Fair
useuse For Research or Private StudyFor Research or Private Study
For criticism or reviewFor criticism or review
For reporting current eventsFor reporting current events
For Non-commercial performancesFor Non-commercial performances
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Fair Use Factors in U.K.Fair Use Factors in U.K.
Quantum and value of the matter quotedQuantum and value of the matter quoted
Purpose Good Faith?Purpose Good Faith?
Whether the work is published, circulated or notWhether the work is published, circulated or not
Likelihood of competitionLikelihood of competition
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Fair Use Factors in U.S.Fair Use Factors in U.S.
Purpose and Character of usePurpose and Character of use
The nature of the Copyrighted workThe nature of the Copyrighted work
Amount and substantiality of useAmount and substantiality of use
The effect on potential market or valueThe effect on potential market or value
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Relevant DebatesRelevant Debates
Trade secrets vs. Patents/CopyrightsTrade secrets vs. Patents/Copyrights
Enforcement mechanisms highlyEnforcement mechanisms highlyprocedural; and evidentiaryprocedural; and evidentiary
Emergence of and Compliance withEmergence of and Compliance withInternational consensusInternational consensus
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CYBER LAWS,CYBER LAWS,E-GOVERNANCE &E-GOVERNANCE &
DATA PROTECTIONDATA PROTECTION
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Geography, is History!Geography, is History!
Contracts & Commerce in Cyberspace andContracts & Commerce in Cyberspace andin Electronic formatin Electronic format
Detection, Investigation and ProsecutionDetection, Investigation and Prosecutionof Cyber Crimes across the globeof Cyber Crimes across the globe
Re-appreciation of legal principles Re-appreciation of legal principles jurisdiction, privacy, IPRs, evidence, etc.jurisdiction, privacy, IPRs, evidence, etc.
IT L Obj &
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IT Law Objects &IT Law Objects &
ConcernsConcerns To provide privacy and guarantee security inTo provide privacy and guarantee security in
public and unregulated spacepublic and unregulated space
To authenticate and authorize transactionsTo authenticate and authorize transactionsundertaken across several countriesundertaken across several countries
To keep the legal framework in pace with theTo keep the legal framework in pace with thechanging forms of technologychanging forms of technology
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Online PiracyOnline Piracy
RIAA v. Charter Comm.IAA v. Charter Comm. (2005 USCoA)(2005 USCoA) P2P; MP3 technology enabled piracyP2P; MP3 technology enabled piracy
2.6 billion music works in a month!2.6 billion music works in a month!
John Doe suits and summonsJohn Doe suits and summons
Disclosure of subscriber detailsDisclosure of subscriber details
Safe harbour (DMCA, 2000) for ISPs = mere transmit andSafe harbour (DMCA, 2000) for ISPs = mere transmit androute; system caching temporary storage; user determinedroute; system caching temporary storage; user determinedprocess; mere provision of links prompt action uponprocess; mere provision of links prompt action uponnotificationnotification
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Online Piracy Online Piracy
Contributory liability only if:Contributory liability only if: Reasonable knowledge of infringementReasonable knowledge of infringement
Expected knowledge of storage on siteExpected knowledge of storage on site
Fails to prevent viral distributionFails to prevent viral distribution
Due diligence given prominence inDue diligence given prominence inIndian Law Intermediaries liabilityIndian Law Intermediaries liability
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Legal FrameworkLegal Framework
Information Technology Act, 2000Information Technology Act, 2000 Latest AmendmentsLatest Amendments
Procedural and EvidentiaryProcedural and Evidentiary
UNCITRAL Model Law on E-Commerce, 1996UNCITRAL Model Law on E-Commerce, 1996
Convention on Cyber Crimes EU+ MembersConvention on Cyber Crimes EU+ Members
US Acts and EU DirectivesUS Acts and EU Directives
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E-GovernanceE-Governance
Recognizes electronic records andRecognizes electronic records andsignatures as valid formssignatures as valid forms
Government can accept, issue, create,Government can accept, issue, create,retain and preserve records electronicallyretain and preserve records electronically
though not mandatorily though not mandatorily
Mandate of the Right to Information ActMandate of the Right to Information Act
E R d d
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E-Record andE-Record and
Contractual PrinciplesContractual Principles
Attribution PrinciplesAttribution Principles Originator/representative/automaticOriginator/representative/automatic
Acknowledgement conditionsAcknowledgement conditions
Notice of acceptanceNotice of acceptance
Time and Place of despatch of e-recordTime and Place of despatch of e-record
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Secured TransactionsSecured Transactions
Government prescribes the security procedure Government prescribes the security procedure considering the technological capacity of theconsidering the technological capacity of theParties; volume of transactions; and generalParties; volume of transactions; and general
proceduresprocedures
Certifying Authorities (licensed):Certifying Authorities (licensed): Issues Electronic/Digital Signature CertificatesIssues Electronic/Digital Signature Certificates
Recognizes foreign Certifying AuthoritiesRecognizes foreign Certifying Authorities
Repository of Certificates and PKIRepository of Certificates and PKI
C b C i dC b C i d
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Cyber Crimes andCyber Crimes and
PenaltiesPenalties Section 43 damage to computer orSection 43 damage to computer or
computer system destroy, alter, delete,computer system destroy, alter, delete,add, modify or rearrange any computeradd, modify or rearrange any computer
resource Fines up to Rs. 1 Crore !!resource Fines up to Rs. 1 Crore !!Penalty to CompensationPenalty to Compensation
Factual factors = unfair advantage;Factual factors = unfair advantage;amount of loss caused; the repetitiveamount of loss caused; the repetitivenaturenature
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Cyber OffencesCyber Offences
Tampering computer source code or relatedTampering computer source code or relateddocuments 3 yrs + 2 lakhsdocuments 3 yrs + 2 lakhs
Hacking into computer resource 3 yrs + 2Hacking into computer resource 3 yrs + 2lakhslakhs
Publishing or transmitting obscene material inPublishing or transmitting obscene material in
electronic form = 5 yrs + 10 lakhelectronic form = 5 yrs + 10 lakh
Extra-territoriality application of the law ifExtra-territoriality application of the law ifIndian computer is involvedIndian computer is involved
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Latest AmendmentsLatest Amendments
DATA PROTECTION & PRIVACYATA PROTECTION & PRIVACY Compensatory remedy = up to 5 CroresCompensatory remedy = up to 5 Crores
Applicable to body corporate (commercial or professional Applicable to body corporate (commercial or professional
activities);activities);
Reasonable security procedures;Reasonable security procedures;
Protection of sensitive personal data/ informationProtection of sensitive personal data/ information
Disclosure of confidential information penalizedDisclosure of confidential information penalized
Violation of Privacy made punishable even in the IPCViolation of Privacy made punishable even in the IPC
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Latest amendments Latest amendments
Punishments identity theft, phishing,Punishments identity theft, phishing,cyber terrorismcyber terrorism
Critical information infrastructure Critical information infrastructure essential to protect national interestsessential to protect national interests
Indian Computer Emergency ResponseIndian Computer Emergency ResponseTeam formedTeam formed
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Latest amendments Latest amendments
Electronic Signature inclusive of DigitalElectronic Signature inclusive of Digital
Definition of Cyber Caf; Cyber Security; Computer sourceDefinition of Cyber Caf; Cyber Security; Computer sourcecodecode
Elaborates intermediary = ISPs, cyber cafes, telecomElaborates intermediary = ISPs, cyber cafes, telecomSPs, Network SPs, Search Engines, E-Com sites, etc.SPs, Network SPs, Search Engines, E-Com sites, etc.
Power of Govt. to authorize/order any private individual orPower of Govt. to authorize/order any private individual orfirm to provide services in an electronic form servicefirm to provide services in an electronic form servicecharges may also be specifiedcharges may also be specified
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Latest amendments Latest amendments
Security procedures and practices asSecurity procedures and practices asGovt. considers appropriateGovt. considers appropriate
Formation of Examiner of ElectronicFormation of Examiner of ElectronicEvidence guarantee of expert opinionEvidence guarantee of expert opinion
Audit of Electronic records expressly Audit of Electronic records expresslyallowedallowed
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Latest amendments Latest amendments
Working of Cyber Appellate Tribunal Working of Cyber Appellate Tribunal techno-legal characteristicstechno-legal characteristics
Creation of Cyber Regulations AdvisoryCreation of Cyber Regulations AdvisoryCommitteeCommittee
Grounds of sovereignty Govt. hasGrounds of sovereignty Govt. haspowers to intercept/ monitor/ decrypt anypowers to intercept/ monitor/ decrypt anyinformation on computer resourceinformation on computer resource
Liabilit ofLiability of
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Liability ofLiability of
IntermediariesIntermediaries Service Providers are exempted from liability ifService Providers are exempted from liability if
lack of knowledge despite due diligencelack of knowledge despite due diligence
Service Providers can be ordered to preserveService Providers can be ordered to preserveand retain informationand retain information Full cooperation is legally mandatedFull cooperation is legally mandated
Comprehensive Search & Seizure Powers givenComprehensive Search & Seizure Powers givento the Policeto the Police
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Jurisdiction IssuesJurisdiction Issues
Conduct of activity wholly or substantially Conduct of activity wholly or substantially within a territorywithin a territory
Conduct outside the territory but directedConduct outside the territory but directedagainst the interests of the countryagainst the interests of the country
Standard of reasonableness applied Active,Standard of reasonableness applied Active,Passive, Territoriality, SovereigntyPassive, Territoriality, Sovereignty Yahoo Inc. matter French Law vs. Rights in USYahoo Inc. matter French Law vs. Rights in US
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DiscussionDiscussion