Information Technology is
growing faster than any other communication vehicle in the history mankind.[1]
Invention of digital technology was the most important revolution in the last
century. The influence of digital technology on information technology is
phenomenal. The present millennium is witnessing a new culture that is internet
culture. It is changing our life style and way of doing business form
traditional commerce to e-commerce. Originally confined to military
establishment internet[2] has due to its speed, intercreativity and flexibility,
tremendous potential to disseminated information beyond the geographical
boundaries. Today the internet is not only used for educational purposes but
also for business. The availability of radio, telephone, television and computer
made it possible to carry out most of the business activities on-line, through
the information technology and communication network. The government of India by
passing IT (Information Technology) Act 2000 and further amending it on 27th
October 2009 has given fillip to cyber law. But various issues are not
specifically covered by the Act, such as copyright, payment issues, media
convergence, domain name, cybersquating and jurisdiction. While these have wide
ranging ramifications for the growth of e-commerce of India.
The continued rapid
evolution of a number key technologies and convergence of broadcasting media,
communication media, home electronics, and publishing on computers creating a
lot of legal issues. Today computer has made television, fax and telephone
redundant. The threat posed by computer is well depicted in the figure below 6.
Thus important attributes like data text images and voice are combined by the
computers in the form of multimedia which raise the issue of neighboring rights.
As technology creates new
opportunities it also poses new challenges. Copyright is most complicated area
of cyberlaw and facing greatest challenge.
According to copyright act
1957, copyright is a negative[3] monopoly right which enables author of the work
to prevent others to exercise that right which has been conferred on him. What
an author creates he is an exclusive owner of that. The precise text to
determine whether a person is entitled to copyright is to ascertain whether
“skill, judgment and experience or labour, and capital has been expended in
creating the work[4].
Copyright law today protects
works such as literary, dramatic and artistic works; cinematography films; sound
recording and computer programmes, data bases and compilations.
Any original work would
exclusively belong to the owner of the copyright and any action with respect to
the work done by any person without the owner’s permission or consent would
amount to infringement.
Nature Of Copyright Infringement In Internet
With the mergence of the internet and increasing use of the worldwide web
possibilities of infringement of copyright have become mind boggling free and
easy access on the web together with possibilities of down loading has created
new issued in copyright infringement. Taking content from one site, modifying it
or just reproducing it on another site has been made possible by digital
technology and this has posed new challenges for the traditional interpretation
of individual rights and protection. Any person with a PC (Personal Computers)
and a modem can become a publisher. Downloading, uploading saving transforming
or crating a derivative work is just a mouse click away.
A web page is not much
different than a book a magazine or a multimedia CD-Rom and will be eligible for
copyright protection, as it contains text graphics and even audio and videos.
Copyright law grants the
owner exclusive right to authorize reproduction of the copy righted works
preparation of derivative works, distribution etc. However application of this
concept on the internet cannot be strictly applied to copyright. Duplication of
the information is an essential step in the transmission of information on the
internet and even plain browsing information at a computer terminal (which is
equivalent to reading a book or a magazine at book store) may result in the
creation of an unauthorized copy since a temporary copy of the work is created
in the RAM of the users computer for the purpose of access. The law on the
subject evolving and the general view is that more accessing a web page would
not be an infringement as the copy created is temporary or ephemeral. Another
common issue amongst web site owners is to create links to other sites within
the design of their own web pages. Would such linking be considered a copy right
violation as these links give access to other copy righted sites? Although
strictly speaking it may be a violation of copyright. But there is an implied
doctrine of public access for linking to other web pages. The Internet was
created on the basic of being able to attach hypertext links to any other
location and it is assumed that once a page is put on the net, implied consent
is given, unless specifically prohibited by the web site owner.
Computer Software And Internet Piracy
Software is defined as a set of instructions which when incorporated in a
machine readable form or in capable of causing a computer to perform a
particular task. To put it simply, it is a series of commands which can be
understood by the machine.
There are three essential
types of software which help to function the computer, micro code it is a
programme which controls the details of execution, the operating system software
which control the sources of a computer and manages routine tasks and is a
necessary requirement for a computer to function and the third is a application
software which is designed to perform a particular task.
Piracy occurs when
copyrighted software is made available to users to download without the express
permission of the copyright owner. Such illegal software is offered over online
sources such as online advertisements newsgroups bulletin board service and
auction sites. Piracy hampers creativity, hinders the development of new
software and local software industry and ultimately effects e-commerce. A piracy
harms consumers and has negative impact on local and national economy. Consumers
run the risk of viruses and having corrupted and defective programs.
Judicial Approach In Dealing With Infringement Of Copyright And
Software Piracy
The Indian Copyright Act is unable to protect the unauthorized distribution and
use of work over internet. Infringement over internet and piracy posing a threat
to creative works worldwide and thus the growth of the internet, the e-commerce
and the digital economy.[5] Copyright owners exclusive right of distribution
applies to e-mail attached or forwarded.
In
Play Boy Enter Inc v/s Frena [6] Defendant’s subscribers downloaded
unauthorized photographs of playboy enterprises to a bulletin board system. US
Court held that the plaintiffs exclusive right of distribution was infringed by
customers of defendant. This creates an obligation on the bulletin board
operators to ensure that its system is not being used to display and download
copyrighted materials by its customers.
In
Feist publication v/s Rural Telephone Service Co. Inc. It was held that
there must be at least some minimal degree of creativity and what should be
protected by copyright were the fruits of intellectual labour and not just sweat
of the brow.
In India databases are
protected as literary works. In US if author is creative in selecting and
arranging the data and does not merely display the data as facts will be
registered. In UK a database which lacks creative input and requires only modest
skill and labour acquire the right of unfair extraction for a period of 15 years
only. While data created by full creativity copyright protection is given i.e.
life of author plus 70 years. Compilation of data are themselves not protectable
can be the subject of protection when there is the necessary selection
coordination and arrangement and combined it with the abstraction, filtration
and comparison test.
Through internet the work of
authors can be displayed in different jurisdictions and which is very difficult
to detect. So the display rights can be easily violated over Internet. Software
can be easily communicated to the public without authorisation by downloading
the software from computer and unauthorized copies made may be retailed or
rented out.
In
Michael v/s Internet - Group Inc.[7] Court held that it is violation of
copyright owners exclusive statutory right of display by making available
videotape over the internet without authorization and posting unauthorized
copies of electronic clipart on web pages
If a web designer creates a
website by combining some special features of various web sites. This may amount
to unauthorized adaptation of the plaintiff software and violation of
plaintiff's copyright. In digital media one can make about infinite number of
copies without loss of quality. So the transferring data from one computer to
another violate the reproduction rights of authors. Unauthorsied reproduction or
"scanning" a copy righted printed document into a digital file, and uploading,
downloading copyrighted file to a bulletin board system is copyright
infringement [8]
In MAl
System Corp, v. Is Peak Computers Inc, it was held that the temporary
copies made into a computer RAM are copies. But in year 1995 in Religious
Technology v/a Netcom[9] US District court held that temporary copying involved
in browsing is the functional equivalent of reading and does not implicate the
copy right laws. So as regards browsing one must come to the conclusion that it
does not amount to violation and can deceived to be a fair dealing
Encryption
Technology And Network Security
Through the use of sophisticated cryptography, digital signature is created. The
International Standards Organisation defines the concepts of a digital signature
as data appended to or a cryptographic transformation of a data unit that allows
a recipient of the data unit to prove the source and integrity of the data unit
and protect against forgery. Encryption may provide a guarantee that the message
has not been altered subsequent to its transmission but can not of itself
provide conclusive evidence that it did originate from the alleged senders. One
method of overcoming this difficulty is to invoke a third party. This notion of
third party intervention has become an important element in governmental
attempts to regulate the use of cryptography. One of the major areas identified
for the use of cryptography is in the field of e-commerce.
Complex issues of security,
privacy, authentication and anonymity have been thrust to the forefront as
confidential information increasingly traverses modem networks. Confidence,
reliability and protection of this information against security threats are a
crucial prerequisite for the functioning of e-commerce. A security threat is
defined as a. crucial condition or event with the potential to cause economic
hardship to data or network resources in the form of destruction, disclosure
modification of data, software piracy, and denial of service, fraud, and abuse.
As per the amendment made by
IT Act 2000 in sec 65B of the Indian Evidence Act 1872, the electronic records
can be produced as documentary evidence before the court of law. Access to
computer databases and an analysis of "image copy" provide reliable evidence.
Unauthorized
Modification Of Data & Computer Virus
Perhaps the most notorious form of conduct in the computer field consists of
dissemination of computer viruses. In many instances, the effect of a virus will
be distinguishable from that of a logic bomb. The difference between the two
concepts is that whilst a logic bomb is normally created is applied to a
particular computer system, a virus will typically transferred from one system
to another. This may occur through the transfer of disks of other storage
devices.
Computer viruses can take a
wide variety of forms. One of the less harmful examples of the species is the
‘Cookie Monster’. Inspired by an American television character, this causes
message ‘I want a cookie’ to appear on the computer screen. If the user types
the word ‘cookie’, the message disappears, otherwise it returns with increasing
frequency. In similar vein, the ping pong’ virus causes the image of bouncing
ball to cross and record the screen. In neither instance are any data or
programs affected.
Other viruses are
considerably more malign. One which is reported to have infected computers in a
Maltese Bank had the effect of corrupting data. Evidencing a somewhat sense of
humour or the part of its creator, the virus gave the user the opportunity to
play what was effectively a game of chance. If the user won, the data would be
restored otherwise it would be permanently erased.
In other cases, not even
this degree of opportunity is given to the user to avoid permanent loss of his
data. One of the most notorious examples of a computer virus was the so called
‘AIDS’ virus. This was contained on a disk, which was mailed to subscribers of a
popular computing magazine. Purporting to be an information program on the AIDS
virus, the programme would corrupt and render useless the data on any computer
on which it was loaded.[10]
TROJAN HORSE: [11]- A
deceptive program that steals passwords.
TRAPDOORS[12]: - Gains entry through access points for system maintenance.
SPOOFING[13]: - Tie up network computers by sending them tons of bogus
enquiries.
DATA DIDDING[14] :- A fraud that input involves input manipulation.
SALAMI TECHNIQUE[15]- Thin slices of information are removed and send to other
accounts.
BSA, NASSCOM,
NITSC & Security Policy
BSA (Business Software Alliance) recommended to put under US 301 list to those
countries which lack rules to preserve and protect intellectual property right
and who failed to follow vigorous enforcement action against software theft.
In a recent survey by the
computer society of India reveals that almost one out of every two InfoTech
companies in India has had its network broken into by hackers. And there out of
every four companies acknowledge that there was some financial loss involve in
such an attack, which attract two companies claiming that they lost $500 000 per
instruction [16]
Robert Hollyman, chief
executive of the Washington based BSA has estimated that the loss to the
software developers on account of software piracy may be upto $1 billion a year.
Through monitoring BSA has detected as many as 95,000 websites which offer
pirated software called “Warez” by hackers.
In India, the National
Association of software and Service Companies (NASSCOM) has proposed the setting
up of a National Cybercrop Committee to provide helping hand to government and
private agencies to combat against cyber hacking.
Hacking is an endless game.
Whenever a new security device is announced, hackers take intellectual pleasure
by cracking it. Six major security technologies that are connected to global net
are: Firewalls, Anti-virus software, security scanner, internet protocol
security (IPSE), Public key infrastructure (PKI). Among all these security
technologies PKI is the principal tool to establish a trusted path for
electronic transactions. PKI protects against assaults like disclosure of
sensitive information, data alteration etc. The most protective technique is the
use of “public key” and “private key”. With the help of these security on the
Net, hoping to generate confidence in customers. So that the internet becomes a
secure medium.[17]
The ministry of information
and technology has setup a National information technology security centre (NITSC)
as a part of a multi-pronged approach to control crime.
Top sources in the IT
ministry revealed that the move was initiated following intruder attacks in many
high profile organization web sites in India. For instance the web defacement of
Bhabha Atomic Research Centre, the theft of telephone numbers related
information from the system of the chief manager, department of Telecom in
Hyderabad by a hacker of Australian origin and the more recently, the web page
defacement of the department of electronics by a Pakistani hacker.
The primary objective of
this centre is to create awareness among the Indian IT community for IT security
and related threats. It is also providing all relevant information and practical
advice to help corporate sector to eliminate or mitigate security threats and
make their systems secure.
Functioning under the R&D
wing of CMC Ltd, the centre disseminates information software tools and issue
virus alerts through a web site. Provides newsletters, advisories and booklets.
It also offers consultancy services through security audits and training course.
One such training course for managers and technical staff is started recently.
As e-commerce takes off and transactions go online all care has to be taken.
Slipping of Microsoft's Bill Gates credit card information into the hands of
cyber criminals reveals that cyber security is a greatest challenge before us.
Day by day budget of cyber security is going high. As per the recent survey most
of the companies dealing with e-commerce are wasting more than 15% of their
budget on network security.
Conclusion
With the arrival of digital technology, multimedia and internet copyright
infringement and software piracy become very easy. Due to weak network security
and hacking the problems becomes more grim and posing threat to e-commerce. US
market is growing @ 20% annually. India is growing with CAGR of 59% over the
last ten years. Mc Kinsey estimates that by 2010 the global market will expand
to S200 billion and India is slated to be a major player in cyber space.
E-commerce focuses its
elements on telephone computer and websites as a basis of deciding
competitiveness of a country. India performs badly on these fronts. To be a
superpower in the present century it must take lead in all relevant areas.
Indian Government has taken
a remarkable step ahead in right direction by enforcing the Information
Technology Amendment Act 2008, on 27th October 2009, but which does not mention
a single word about copyright. While the copy right is one of the most
complicated areas of cyber law, .Jurisdiction, cybersquatting , trademark,
patent, domain name, media convergence, taxation, payment issues are also not
covered by the said Amendment Act. While these are essential for the growth of
e-commerce.
Moreover internet,
e-commerce and copyright related cases are only being instituted in the western
countries, to be more precise USA. But it seems that the Indian courts might see
and influx of internet related cases in the near future. Therefore we should
prepare our legal institutions for the production of information superhighway
gateway. India has to go a long way to realise the true potential of information
technology for conducting e-commerce. A lot depend upon the policy of the
government to built necessary infrastructure, but it can surely be said that
e-commerce is the way of a better future.
--------------------------------------------------------------------------------
[2] The Term Internet is defined as a set of computer network –possibly
dissimilar joined together by means of gateways that handle data transfer and
the conversion of messages from sending network to the protocols used by
receiving networks. See. Microsoft computer press dictionary 200. (2nd 1994)
[3] Deepak Printings v/s Forward Stationary mart (1981) PTC 186 at P 189
[4] Mac Milan v/s Cooper (1923) 93 LJPC 113 and 117
[6] 839 F. Supp. 1552 (M D Fla 1993)
[7] F. Supp. 2d C.D. Lal 1988
[8] Tabrez Ahmad: Cybcrlaw e-commerce & m-commerce, APH Publishing Corp. New
Delhi, 2003.
[9] 907 F. Supp. 1361 (N.D Cal 1995)
[10] Business Today March 21, 2001 p.35
[11] Ibid
[12] Ibid
[13] Ibid
[14] Ibid
[15] Ibid
[16] Ibid
[17] Civil Services Chronicle April 2000 p. 67
About the author:
Associate Professor of Law, KIIT Law School, KIIT
Univeristy. A science graduate, Dr. Tabrez Ahmad has been awarded Ph.D. in Cyber Law from Aligarh Muslim University. The SAARC Level Training Programme on Fact Based Teaching and Legal Research organized by United States Education Foundations of India are to his credit. He also practiced Law at the Bar of the High Court at Delhi and Supreme Court of India. He has the experience of teaching in many educational institutions of national repute. He has been the founding faculty of the National University of Juridical Sciences (NUJS), Kolkata and founder Director of the Durgapur Institute of Legal Studies (DILS). As an eminent researcher, he has participated in various national/international seminars and conferences (including International Conference on Intellectual Property Law organized by George Washington University Law School, USA and CII, SPCI08 an International conference of Cyberlaw organised by USA,France, Russia and Egypt, he was invited to deliver lecture in the International Conference of Cyber crimes ISSCRIM 2009 BRAZIL) and also worked on World Bank and UNDP sponsored projects. In addition to his numerous research articles, he authored a pioneering book on mobile commerce laws entitled "Cyber Law, E-commerce and M-commerce".
The author can be reached at: tabrezahmad@legalserviceindia.com
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