LEGAL CHALLENGES OF DIGITAL MILLENIUM

A.Ram Kumar Advocate

High Court of Andhra Pradesh Intellectual Property Rights & Information Technology

• (Copyright)

Challenges of Cyber space

• Relationship between law and tech has always been uneasy

• Law had been slow and lethargic to respond to new technologies

• Till recently the law makers handled problems presented by technology with out break down of legal resources

• Convergence of computers and internet posed a much more grave problem

• Legal policy makers find it difficult to address.(Copyright)

Borderless environment

• Cyberspace is borderless environment• Invisibility of net users facilitates anonymity and

pseudonymity• Intangible nature of the information• All the above make it extremely difficult to apply

traditional legal concepts to cyberspace activity.• Even in absence of specific legislation the common

law was being depended upon

• (Copyright)

American Influence

• Internet basically product of US• Issues relating to cyberspace greatly influenced by

US constitutional and legal issues• Indian law is basically of British Origin and most of

the laws are very archaic • Indian law makers need to evolve new laws.

Emphasis laid under the IT Act to make the Act applicable to offences committed outside India

• (Copyright)

Identification – Major Problem

• A person can express his views in anonymity• Anonymity and pseudonymity causes problems of

identification• Identification of offender is essential for imposing

liability• Identification some times involves technology –

forensic or DNA• Establishing offence becomes a major exercise-

nexus between equipment and offender• (Copyright)

Exercise of Jurisdiction

• Borderless nature of the cyberspace challengers.

• Traditionally jurisdiction is linked with territory

• Court to decide if it has personal jurisdiction over the parties.

• Whether general jurisdiction or extra territorial jurisdiction

• Different views expressed by courts on the jurisdictional matter

• (Copyright)

US Supreme Court

• Intl Shoe Co Vs Washinton• “Ordinarily a non resident defendant may not be sued in

the forum unless it is first established that the defendant has sufficient minimum contacts with the forum and the maintenance of the suit does not offend traditional notions of fair play and substantial justice”.

• If this test was met the court could exercise its jurisdiction

• The convention on Jurisdiction and Foreign Judgments in Civil and Commercial matters being negotiated under the auspices of The Hague Conference on Private Intl Law seeks to address the issue of multiplicity of Jurisdiction

• (Copyright)

Copy right issues

• Copyright law turned upside down• Traditional legal doctrines on CR rendered out of

date• 3 indelible way by which information is used and

exploited:– Digitisation of information made reproduction easy– Networking has made distribution easy– WWW made publication easy

• Three developments contributed for costs to be shrunk to unimaginable level

• Economics of information value is affected • (Copyright)

Virtual property• Virtual property is new kind of property spawned by the

net• This virtual property capable of generating astonishing

wealth• Information can be archived, compared, manipulated

and distributed at astonishing ease• Data bases have acquired new value • TM Rights and Domain names have new virtual property

in form of Cyber marks.• Domain names runs the cyberspace and because of the

globalization and commercialization of net DN are business identifiers

• Indian law has made a good head way in recognizing DN as IP

• (Copyright)

Knowledge Economy - criminalisation

• Knowledge is third factor of production after capital and labour

• Knowledge is used to create and exploit • Crucial part in generating wealth• Knowledge capitalism is the new trend of business

economy • But in the race to achieve this law was left behind• The pace of development of tech gave rise to on line

offenders and criminal• Speed at which offence is committed is incredible• Pace at which the crime is detected and solved is slow• (Copyright)

New legal challenges

• The legal system as to be re engineered in so far as digital and cyberspace offences are concerned

• Evidence gathering and law relating to evidenced to undergo substantial change

• Searching and seizing of evidence calls for special expertise

• Legal fraternity has to familiarise itself with advanced evidence techniques like Forensic science, digital foot printing etc

• Legal questions should be settled fast even with judicial intervention

• The entire legal structure for Digital offences to be set up

• (Copyright)

Beginning made

• Courts have started with computerization,digitization and Networking - at lower level

• Hosting of day to day judgments• Virtual conferencing in criminal matters• Enterprise Resource Planning and CRM packages to help

CJ’s to keep track of progress of litigation and disposals• Posting of cause lists, judgments, references to acts etc• By enacting IT Act, 2002, India has signaled to the world

that our country is ready to take up challenges.• Establishing Cyber Crime police stations to deal with

digital offences• (Copyright)

Thank you• Questions please

www.iprconsultants.comramkumarashok@gmail.com