A Project

On

Legal Framework on Electronic Commerce & IPR in Cyberspace

[Submitted as a partial fulfilment of the requirements for B.A. LL.B (Hons.) 5 year integrated
course]

Session: 2019-20

Submitted On: -0-2020

Submitted by: Priyanka Verma Supervised by: Mr. Manoj Meena

Semester: X (B) Assistant Professor

Roll No: 74

University Five Year Law College

University of Rajasthan
Jaipur
 DECLARATION

I, Priyanka Verma hereby declare that this project work titled “Legal Framework on
Electronic Commerce & IPR in Cyberspace” is based on the original research work carried
out by me under the guidance and supervision of Mr. Manoj Meena, Asst. Prof, University
Five Year Law College, Jaipur.

The interpretations put forth are based on my reading and understanding of the
original texts. The books, articles etc, which have been relied upon by me have been duly
acknowledged at the respective places in the text.

For the present project which I am submitting to the university, no degree or diploma
has been conferred on me before, either in this or in any other university.

Signature
 CERTIFICATE
Mr. Manoj Meena
Assistant Professor
University Five Year Law College
University of Rajasthan
Jaipur

This is certify that Priyanka Verma, student of semester viii of University Five Year
Law College, University of Rajasthan has carried out the project entitled “Legal Framework
on Electronic Commerce & IPR in Cyberspace” under my supervision and guidance. The
student has completed research work in my stipulated time and according to the norms
prescribed for the purpose.

[Supervisor]
 ACKNOWLEDGMENT

I have written this project, “Legal Framework on Electronic Commerce & IPR in
Cyberspace” under the supervision of Mr. Manoj Meena, Asst. Prof., University Five Year
Law College, University of Rajasthan, Jaipur. His valuable suggestions herein have not only
helped me immensely in making this work but also in developing an analytical approach this
work.

I found no words to express my sense of gratitude for Dr. Sanjula Thanvi , Director,
University Five Year Law College, University of Rajasthan, Jaipur for her constant
encouragement at every step.
I am extremely grateful to librarian and library staff of the college for the support and
cooperation extended by them from time to time.

Priyanka Verma
 TABLE OF CONTENTS
Particulars Page No.
S. No.
1. Declaration ii
2. Certificate iii
3. Acknowledgement iv
4. Abstract 6
5. Research Methodology 7
6. Introduction 8
7. Chapter I - Definition and Scope of Electronic 9
Commerce
8. Chapter II - Definition and Scope of Intellectual 10
Property Rights
9. Chapter III - Need for legal framework 11-14
- The international legal framework for Electronic
Commerce and IPR in cyberspace

10. Chapter-IV - Indian scenario 15-19

-Jurisdiction issues
-Other cases
11. Conclusion 20
12. Bibliography 21

ABSTRACT
The Information Technology Act 2000 is an outcome of the resolution dated 30th January
1997 of the General Assembly of the United Nations (UNCITRAL), which adopted the
Model Law on Electronic Commerce on International Trade Law. Cyber Crimes are one of
the fastest growing crimes in the world. While the Act has been successful in setting down
the frame work of regulations in Cyber Space and addresses a few pressing concerns of
misuse of technology, it suffers from a few serious lacunae that have not been discussed, i.e.
Intellectual Property issues. Intellectual property means knowledge or information in any
form which has a commercial value and Intellectual property rights can be defined as a mix
of ideas, inventions and creations i.e. Copyright, Patent, Trademark, Design are some of the
types of Intellectual Properties. This thesis is cantered on international trade law and seeks to
make an analysis of the electronic commerce related Laws in effect hinged on the
UNCITRAL (United Nations‘ Commission on International Trade Law) Model Law on
Electronic Commerce and the UNCITRAL Model Law on Electronic Signatures, or the lack
of them. There are numerous articles discussing various aspects of Electronic Commerce,
however, a good number of them seem to be outdated and such articles appear not to cover
the same field this research seeks to cover. These things are creations of the human mind and
hence called Intellectual Property. Information Technology Act 2000 does not mention a
single word about Intellectual Property protection while Infringement of IPR is one of the
most challenging area in cyberspace. As well as Copyright and Domain names violations do
occur on the internet but Copy Right Act 1957 & Trade Mark Act 1999 are silent on that
which specifically deals with the issue. Therefore we have no enforcement machinery to
ensure the protection of domain names on net. Time has come where we must enact special
legislation for the protection of Intellectual property in cyberspace.
Research Methodology

The researcher has used doctrinal method and relied only upon secondary sources of data to
prepare this project.

 Research Objective

This project aims to study and comprehend the legal framework on electronic commerce and
IPR in cyberspace. To define the concept of e-commerce, To analyse the benefits educed
from electronic commerce, To embark on a study of some of the international legal regimes
regulating e-commerce.

 Research questions

Our contemporary society has turned into one big global village, such that most transactions
are being concluded by means of electronic commerce methods and IPR also, which is fast
becoming the norm in both developing and developed economies alike. There are multitudes
of issues that have arisen and are still steadily arising as a result of this norm, such that it
becomes pertinent to pose the question whether there exists a legal framework regulating
such transactions and if it is indeed adequate to deal with the vast developments in this area
of international trade law.

 Mode of citation

The ILI Rules of Footnoting have been followed throughout the project titled “Legal
Framework ”.

 Scheme and Outline of the project

The salient provisions of the various Legislations regulating electronic commerce in various
countries, identifies problems of electronic contracting and generally attempts at making
recommendations based on the shortcomings identified in these Legislations. The merits and
demerits of the legal framework as to be e-commerce and the intellectual property rights. The
infringement of the intellectual property rights in cyberspace as issue of copyright to be
infringement in cyberspace and various form of infringement of trademark in cyberspace
also.
 INTRODUCTION

The utility of computers and the internet is well understood and in fact embedded in the
modern business and commerce as well as in the society in general. The advantages of the
use of the computers and internet are immense in the modern business and our society can’t
function smoothly without computers and information technology. But the use of internet and
computers
has brought along many unavoidable misuses of computer and the internet. This has been
possible more so because, in the use of the computers, there is no any territorial limit and can
be used from any jurisdiction. E-commerce nowadays have become very popular especially
in the corporate sector. The advantages and scope of publicity of business through e-
commerce or business on the World Wide Web can reach the surfers very fast in any part of
the world. But this has paved the way for the emergence of the cyber-crime. With the
advancement of Technology, Cyber law is a constantly evolving discipline and
there is need to re-look the existing Cyber law frameworks for the purposes of
filling up the lacunae and also improving the existing legal frameworks
concerning the electronic ecosystem and also electronic commerce, mobile
commerce, electronic governance and protection and preservation of Intellectual
Property Rights in cyberspace. 1 The concept of trade has been in existence from time
immemorial and has evolved from the traditional exchange of goods for goods (that is, trade
by barter form), which was the starting point of what we know as trade today, to the
exchange of goods for mediums of exchange, which serve as legal tender. Moreover, the
means of trading has equally evolved from the traditional face to face trading by means of
paper documents, to a more advanced form of trading in which the buyer may never meet the
seller, but would transact using paperless documents. Presently, trade has evolved to
encompass electronic processing and transmission of data, to include text, sound, picture and
even video forms. This has been made possible by the emergence of the internet. This thesis
is centered on international trade law and seeks to make an analysis of the electronic
commerce related Laws in effect hinged on the UNCITRAL (United Nations‘ Commission
on International Trade Law) Model Law on Electronic Commerce and the UNCITRAL
Model Law on Electronic Signatures, or the lack of them. There are numerous articles

1
Ahuja V.K, Intellectual Property Rights in India, Lexis Nexis Butterworth'sWadhwa, Nagpur, 2009,at page
nos.75-76.
discussing various aspects of Electronic Commerce, however, a good number of them seem
to be outdated and such articles appear not to cover the same field this research seeks to
cover.2
CHAPTER- I

-DEFINITION AND SCOPE OF ELECTRONIC COMMERCE

Electronic commerce is commonly known as e-commerce and encompasses any form of

business transaction in which the parties interact electronically rather than by physical
exchanges or direct physical contact. It also means doing business over the Internet, selling
goods and services which are delivered offline as well as products which can be digitised‖
and delivered online, such as computer software‘. E-commerce can be thought of as a more
advanced form of mail order purchasing through a catalogue, as almost any product or
service can be offered via e-commerce. In a broader sense, it includes commercial forms such
as Electronic Data Interchange (E.D.I) and Electronic Funds Transfer (E.F.T), as well as
commercial technologies such as Bar Coding, Electronic Imaging, Facsimile, E-mail, Internet
Trade and Satellite Communications. E-commerce has in recent years become an integral part
of the multilateral trade system. One could almost draw the conclusion that the international
trade would not be able to function without the basic elements entrenched in e-commerce.
Therefore, the importance of e-commerce necessitates an understanding of the principles and
its operation within the international and municipal legal frameworks. The obvious reason for
this is that the system has a dual purpose to ensure effective international operation and to
enable relevant state parties to implement the framework within their municipal systems. The
e-commerce platform creates a broader marketplace for buyers and sellers to meet,
dispensing with the need for several personnel being employed to oversee the running of a
business unit, hence, saving costs; without limiting the number of transactions which could
be carried on at a time, thereby fostering efficiency. The combination of these factors,
amongst others, result in reduced cost of transaction savings, which could be passed on to the
buyer in the form of low cost of goods and services. A writer opines that the major
significance of E-Commerce lies in the fact that it promotes a single world trading system,
which is facilitated by access through electronic means, to goods and services all over the
world. Despite the immense benefits e-commerce offers, as highlighted above, there are
multitudes of issues (legal/procedural/normal business practice) inherent in its use, which
range from means of proof of e-commerce transactions, to data protection, cyber-crimes and
2
Ahmad Tabrez , Cyber Law and E-Commerce, APH Publishing Corp., New Delhi, 2003, at Page no.85.
on to the issue of jurisdiction in the event of a dispute between the parties, amongst others.
These issues bring to the fore the need for a Legal framework regulating e-commerce, which
shall be discussed shortly.3
CHAPTER-II
-DEFINITION AND SCOPE OF INTELLECTUAL PROPERTY RIGHTS
The concept of Intellectual property can be traced back to the Byzantine Empire where
monopolies were granted. For instance in Greece a one year monopoly was given to cooks to
exploit their recipes. A statutory legislation in the Senate of Venice provided exclusive
privileges to people who invented any machine or process to speed up silk making. Thus,
from Intellectual property being totally alien to the nomadic community came an era where
every new idea was given protection under the category of Intellectual Property Rights.
Copyright is known as one of the types of Intellectual properties. Before going into details of
the copyright and related issues in cyberspace, we need to know the concept of Intellectual
property and its importance. To go home is to enter a place built & filled with human
creativity & invention. From a carpet to a sofa, from the washing machine, the refrigerator
and the telephone, to the music, the books, them paintings, family photographs, everything
which we live is a product of human creativity. These things are creations of the human mind
and hence called Intellectual property. On the other hand Copyright covers literary, dramatic,
artistic, musical, cinematographic films and sound recording etc. etc. The primary legislations
regulating Intellectual property in India are: The Patents Act 1970, The Trade Marks Act
1999, The Geographical Indications of goods (Registration and Protection) Act 1999, The
Design Act 2000, The Semiconductor Integrated Circuits Layout-Design Act 2000 and the
Copyright Act 1957. The IT Act deals with the concept of violation of privacy in a limited
sense; it provides that the privacy of a person is deemed to be violated where images of her
private body areas are captured, published or transmitted without her consent in
circumstances where she would have had a reasonable expectation of privacy and prescribes
a punishment of imprisonment of up to 3 years and/or fine of up to INR 2 lakhs. Intellectual
Property concern is one of the foremost considerations for any company entering into
business including e-commerce transactions. The internet is a boundless with minimum
regulation and therefore the protection of intellectual property rights (IPR) is a challenge and
a growing concern amongst most e-businesses. India has well-defined legal and regulatory

3
Duggal Pawan, Legal Framework on Electronic Commerce and Intellectual and Property Rights in
Cyberspace, universal law publication, 2007 at page no. 83-84
framework for the protection of IPRs in the physical world. But, the efficacy of these laws to
safeguard the rights in and out of an e-commerce transaction is not simple.4

CHAPTER-III
-NEED FOR A LEGAL FRAMEWORK
The continued smooth running of human relationships is dependent on the existence of
functional institutions, and as such relationships grow in number and complexity, so also
must these institutions. As stated earlier, e-commerce appears to be the new anchor of global
commerce and has brought significant changes to world trade. Considering the exponential
growth of the internet, the question of whether or not to regulate it has been well mooted. It
appears as though the majority of international organisations tend to have reached an accord
on the need for a harmonized regulatory framework for e-commerce. This has led to the
promulgation of several model laws by the UNCITRAL, amongst similar bodies, as would be
treated later in this paper. However, there are two distinctive features to be borne in mind as
regards e-commerce, which set it apart from other methods of contracting. The first pertains
to its largely unregulated nature, while the second touches on its face-paced nature which
makes it almost impossible for the law to predict the next technology by making precognitive
rules that reflect business practices using such new technology. There are multitudes of issues
that have arisen and are still steadily arising as a result of this new norm, it is therefore
suggested that specific regulations addressing these issues resulting from the new electronic
trading environment will significantly reduce the legal uncertainty e-commerce may raise and
enhance the confidence with which the technology is employed. In view of the risks
presented by the use of E-Commerce, as discussed above, for any nation to maximize the
benefits of E-Commerce, while protecting itself from the inherent risks, its implementation of
a Legal framework to regulate E-Commerce activities is apposite. The existence of a Legal
framework regulating E-Commerce is pertinent for the reasons below amongst others. 5 As
Intellectual property is one of the valuable assets of any person, it should be protected at any
cost since a person puts his skills and labour for creation of Intellectual Property. On the
other hand, there is an urgent need for the strict laws in this field, so that these crimes related
to IPR could be avoided in future. The new domain name dispute law should be intended to

4
Pawan Duggal, Legal Framework on Electronic Commerce and Intellectual and Property Rights in
Cyberspace, universal law publication, 2007 at page no. 85-86

5
Pawan Duggal, Legal Framework on Electronic Commerce and Intellectual and Property Rights in
Cyberspace, universal law publication, 2007 at page no. 109-110
give trademark and service mark owner’s legal remedies against defendants who obtain
domain names “in bad faith” that are identical or confusingly similar to a trademark. It should
act as an important weapon for trademark holders in protecting their intellectual property in
the online world.6
-THE INTERNATIONAL LEGAL FRAMEWORK FOR ELECTRONIC
COMMERCE AND IPR IN CYBERSPACE.

A major challenge which has accompanied e-commerce since its inception is the task of
regulation. This challenge is heightened by the virtual nature of e-commerce and its ability to
break down physical barriers by seemingly crossing borders. Various institutions and
organisations have attempted at surmounting this challenge, by the creation of regulatory
frameworks to govern domestic and international e-commerce transactions. Such institutions
as the International Chamber of Commerce (ICC), the International Institute for the
Unification of Private Law (UNIDROIT), the Comity Maritime International (CMI), the
United Nations Commission on International Trade Law (UNCITRAL), the Organisation for
the Harmonisation of Business Law in Africa (OHADA) and the European Union (EU) have
all made concerted efforts in this regard. Such efforts have yielded in a number of the
harmonized Legal regimes regulating e-commerce over the years, which include7:
 The Hague & Hague-Visby Rules, 1978, developed by the CMI;
 The United Nations‘ Convention on Contracts for International Sale of Goods, 1980;
 CMI Rules for Electronic Bills Of Lading, 1990;
 The UNCITRAL {United Nations‘ Commission on International Trade Law} Model
Law on Electronic Commerce 1996 [MLEC];
 The UNCITRAL {United Nations‘ Commission on International Trade} Model Law
on Electronic Signatures 2001 [MLES];
 The United Nations‘ Convention on the Use of Electronic Communications in
International Contracts 2005;
 The United Nations‘ Convention On Contracts For The Carriage Of Goods Wholly /
Partly By Sea, 2008;
 The Supplement to The Uniform Customs and Practice for Documentary Credits for
Electronic Presentation (eUCP) version 1.1, developed by the ICC.
6
Nagpal Rohas, Intellectual Property Issues and Cyberspace, Asian School of Cyber Law
Publication,Pune,2008 at page no. 54
7
Pawan Duggal, Legal Framework on Electronic Commerce and Intellectual and Property Rights in
Cyberspace, universal law publication, 2007 at page no. 140
International Legal regimes currently regulating e-commerce are the key focus of this
chapter. The following conventions/legal instruments would be discussed in more detail
below:
 The Uniform Rules of Conduct for Interchange of Data by Tele transmission
(UNCID);
 General Usage for International Digitally Ensured Commerce (GUIDEC); and
 The European Union Directive on Electronic Commerce.

However, the key International instruments of interest to this discourse are the UNCITRAL
Model Law on Electronic Commerce and the UNCITRAL Model Law on Electronic
Signatures. This thesis concentrates on these instruments on account of the fact that these
model laws are the key universal instruments which have been specially formulated to
address e-commerce issues across the globe and form the backbone of most e-commerce
legislations all over the world. In a nutshell, the peculiar features inherent in them as well as
their wide application account for the interest of this thesis in the Model Laws. The aims of
these Model laws include the unification of rules to make room for the acceptability of paper-
based documents. A Model Law does not have the same legislative weight as a convention,
and perhaps. Both Model Laws are based on the Fundamental Principles of non-
discrimination, technological neutrality and functional equivalence. In respect of non-
discrimination, the Model Laws impart legal recognition to data messages, by ensuring that a
document is not denied legal effect, validity or enforceability, solely on the grounds of its
electronic form. This, in effect, removed some of the obstacles which prevented the wide
acceptability of electronic messages and documents. In terms of technological neutrality, the
model law mandates the adoption of provisions that are neutral, with respect to the
technology used, with the aim of accommodating any future development without further
Legislative work by the adopting country. A key impediment to the acceptability of new
technologies, such as electronic messages is that at the time majority of existing legislations
were drafted, these technologies were not pre-empted, as they were not in existence, and
when they came into existence they tend to be treated with uncertainty, until legislations are
made as regards them.8 However, against the background of this trend, the model laws
attempt at overcoming similar hurdles by this feature of technological neutrality. While the

8
Pawan Duggal, Legal Framework on Electronic Commerce and Intellectual and Property Rights in
Cyberspace, universal law publication, 2007 at page no.141
principle of functional equivalence analyses the purposes and functions performed by the
traditional paper-based requirements, with a view to determine how these functions and
purposes can be achieved by e-commerce techniques. For instance, the principal functions of
a signature are to identify the signatory and to ascertain the signatory‘s consent to the content
of a document. The position of the Model Law is that once an electronic message
successfully fulfils these functions, then it is regarded as legally acceptable as a signed
document. Hence, the requirements of original, signature, and so on are met using electronic
techniques. It is important to note that the UNCITRAL Model Laws are intended to serve as a
guide for domestic legislatures to update their legislation in order to incorporate e-commerce
into their national Laws on contracts. The entertainment industry in India is finding it
difficult to keep pace with rapidly evolving digital technologies that challenge existing laws
on intellectual property rights and business models. Globally, technology continues to evolve
making it possible for individual users to record, duplicate and transmit films or music in
digital form with ease and without loss of quality. The piracy of creative works by organized
groups spawned by such advances is a universal concern. It has pitted producers of films,
Music and broadcast programming against consumers and rights advocates fear that industry
lobbying is leading to unfair copyright protection loaded in the producer's favour. There is a
consensus on the need for reasonable protection of copyright, but differences have sharpened
over the level of safeguards. While these debates go on, file-sharing using the peer-to-peer
(P2P) model on the Internet has opened up a new area of confrontation between music lovers
and film buffs, and the respective industries. Using a particular P2P service enables
unfettered sharing among members.9

9
Pawan Duggal, Legal Framework on Electronic Commerce and Intellectual and Property Rights in
Cyberspace, universal law publication, 2007 at page no. 142
 CHAPTER-IV
-INDIAN SCENARIO

Indian Copyright Act kept track of international conventions, the current copyright law lags
far behind the west. As India did not sign the "WIPO Internet Treaties" there is no equivalent
legislation in India to the US DMCA or EU directive implementing the WIPO Internet
Treaties The present Copyright Act of India does not have provisions regarding the
'technological protection measures' nor the protection of 'electronic rights management
information'. Some provisions of the Indian Penal Code, 1860 (IPC) may suffice to provide
for legal protection for technological measures. Section 23 of the IPC speaks of 'wrongful
gain or wrongful loss. This Section may be relied upon in the case of unauthorized access to
the 'protected work'. Section 28, which speaks of 'counterfeiting', may be effectively utilized
to arrest the copying of protected works. India is one among the top 20 countries in the
utilization of the Internet. Though it has a low Internet penetration percentage, India has
become the software development hub of the world and has become a favourite destination in
this area. The increase in the utilization of the Internet, problems in copyright protection
related to digital transmission have become worse. It is a paradoxical situation. If India
provides stronger legal protection for technological protection measures with limited fair use
exceptions, it will end up in depleting public domain and harming public interest principle of
copyright. If it does not provide for legal protection for technological measures, the Internet
may create havoc in enforcement of copyright protection. India enacted, the Information
Technology Act (IT Act) 2000 to address problems created by 'cyberspace' regarding conduct
of electronic commerce. The IT Act does not lay down any concrete framework for dealing
with specific copyright violations of the Internet. There are provisions that may be construed
to be seeking to address some aspects of copyrights as is obvious from the Section 43 which
relates to penalty for damage to computer, system. Non-profit organizations like NASSCOM
(National Association of Software and Service Companies) have been actively working as a
partner with the Government of India and State Governments in formulating IT policies and
legislation in India. Its work is commendable as it launched the country's first 'anti-piracy'
hotline and India's first anti-piracy toll-free hotline. State Governments are establishing
special police cells for arresting the piracy of copyrighter works. Copyright owner's concerns
about the threats posed by the digital revolution are legitimate. 10 The technological protection

10
Pawan Duggal, Legal Framework on Electronic Commerce and Intellectual and Property Rights in
Cyberspace, universal law publication, 2007 at page no. 144
systems have tilted the balance in favour of the right holders at the cost of public domain. In
India there does not seem to be well developed jurisprudence on the issue of whether
standard form online agreements are unconscionable. However, Indian laws and Indian courts
have dealt with instances where terms of contracts (including standard form contracts) were
negotiated between parties in unequal bargaining positions. Certain provisions under the
Indian Contract Act deal with the unconscionable contracts such as when the consideration in
the contract or the object of the contract is opposed to public policy. 11 If the consideration or
object of the contract is opposed to public policy, then the contract itself cannot be valid. In
case of unconscionable contracts, the courts can put a burden on the person in the dominant
position to prove that the contract was not induced by undue influence. In the case of LIC
India v. Consumer Education & Research Center 12 the Supreme Court interpreted an
insurance policy issued by Life Insurance Corporation of India by bringing in certain
elements of public purpose. The court declared certain term clauses in the policy, pertaining
to restricting the benefit of the policy only to those people employed in the Government as
void under article 14 of the Constitution. The Court noted that “In dotted line contracts there
would be no occasion for a weaker party to bargain as to assume to have equal bargaining
power. He has either to accept or leave the service or goods in terms of the dotted line
contract. His option would be either to accept the unreasonable or unfair terms or forgo the
service forever” .In the case of Lily White v R Munuswami13 the court held that a limitation
of liability clause printed on the back of a bill issued by a laundry which restricted the
liability of the laundry to 50% of the market price of the goods in case of loss was against
public policy and therefore void. The Indian Contract Act does not define the expression
‘public policy’ or what is meant by being ‘opposed to public policy. However this section
allows the court to hold clauses opposed to public policy as void. Section 16(3) of the
Contract Act provides that where a person who is in a position to dominate the will of
another, enters into a contract with him, and the transaction appears, on the face of it or on
evidence adduced, to be unconscionable, the burden of proving that such contract was not
induced by undue influence shall lie upon the person in a position to dominate the will of the
other. Section 23 of the Contract Act provides that the consideration or object of any
agreement is unlawful. It created a new and powerful "Access right" deployed to prevent
infringing reproduction, reproduction that is permitted under existing copyright exceptions.
11
Pawan Duggal, Legal Framework on Electronic Commerce and Intellectual and Property Rights in
Cyberspace, universal law publication, 2007 at page no. 145
12
AIR 1995 SC 1811.
13
AIR 1966 Mad 13
Technical protection systems can be used to prevent infringing reproduction, reproduction
permitted for educational and archival purposes or reproduction necessary for research
permitted under fair dealing principles. Concerning Indian position, new provisions are to be
added to the present copyright laws to provide legal protection for 'technological protection
measures' and 'digital rights management’. Reconciling the private interest and the public
interest is very challenging; India cannot ignore the public interest principle underlying the
copyright laws. It can follow the Japanese example, i.e., treatment of ‘non-commercial’ use
as fair use. There is no perfect solution to the problem of protecting copyrighted works in the
digital environment. There is no perfect solution to the problem of protecting copyrighted
works in the digital environment; fair use can be used as a counterweight to maintain the
appropriate balance between the public and private interests. The issue of computer software
piracy is itself not a new one.14 This paper attempts to address issues that arise out of having
computer software on internet, manner in which piracy occurs, the rights and liabilities of
various parties and steps to be taken to curb it. Under Indian copyright Act, 1957, the term
"computer programmer", is defined by section 52(I) (ad), as a set instruction expressed in
words, codes, schemes or in any other form, including a machine readable medium, capable
of causing a computer to particular task or achieve a particular result”. The above is based on
the definition of World Intellectual Property Organization; Draft Models Provision for
Legislation in the field of Copyright. The definition, under 1977 Model Provisions for the
Protection of Computer Software, comprises of three components:
• Computer Programmers;
• Programmer description, and;
• Supporting material.
Copyright law protects only the expression of the idea of the holder of the copyright and not
the idea. In India, Computer software falls under copyright law and therefore, only the
expression of the idea behind the software can be protected.15

14
Pawan Duggal, Legal Framework on Electronic Commerce and Intellectual and Property Rights in
Cyberspace, universal law publication, 2007 at page no. 146
15
Pawan Duggal, Legal Framework on Electronic Commerce and Intellectual and Property Rights in
Cyberspace, universal law publication, 2007 at page no. 146
-JURISDICTION ISSUES

In any dispute, one of the primary issues that a court determines is whether or not the said
court has jurisdiction to try the dispute; a court must have both subject-matter jurisdiction
(i.e. jurisdiction over the parties involved in the dispute) and territorial jurisdiction. The
increased use of the internet has led to a virtual world which is not possible to be restricted in
terms of traditional concepts of territory; this has led to complications in determining
jurisdiction. According to the traditional rules of jurisdiction determination, the courts in a
country have jurisdiction over individuals who are within the country and/or to the
transactions and events that occur within the natural borders of the nation. Therefore in e-
commerce transactions, if a business derives customers from a particular country as a result
of their website, it may be required to defend any litigation that may result in that country. As
a result, any content placed on an e-commerce platform should be reviewed for compliance
with the laws of any jurisdiction where an organization wishes to market, promote or sell its
products or services as it may run the risk of being sued in any jurisdiction where the goods
are bought or where the services are availed of. Jurisprudence in India with respect to issues
relating to jurisdiction and enforcement issues in e-commerce is still nascent. In general a lot
of local statutes provide for a ‘long arm jurisdiction’ whereby the operation of such local
laws have extra-territorial application if an act or omission has resulted in some illegal or
prejudicial effect within the territory of the country. 16 Below we set out certain provisions of
Indian laws which provide for such long arm jurisdiction: Section 1(2) of the IT Act read
along with Section 75 of the IT Act provides that the Act shall extend to the whole of India
and, save as otherwise provided under the Act, it shall apply also to any or contravention
thereunder committed outside India by any person and the Act shall apply to any offence or
contravention committed outside India by any person if the act or conduct constituting the
offence or contravention involves a computer, computer system or computer network located
in India. Section 3 of the IPC provides that any person who is liable, by any Indian law, to be
tried for an offence committed beyond India shall be dealt with according to the provisions of
the IPC for any act committed beyond India in the same manner as if such act had been
committed within India. There does not seem too much jurisprudence in India on the issue of
jurisdiction in cases of e-commerce. However there are some instances wherein the courts
had in the preliminary stages assumed jurisdiction over a matter. In the case of SMC.

16
Pawan Duggal, Legal Framework on Electronic Commerce and Intellectual and Property Rights in
Cyberspace, universal law publication, 2007 at page no. 153
Pneumatics (India) Pvt. Ltd. v. Jogesh Kwatra 17, the Delhi High Court assumed
jurisdiction where a corporate’s reputation was being defamed through e-mails. The US
courts have developed the “minimum contacts” theory whereby the courts may be. Section 3
of the Indian Penal Code (IPC), 1869 provides that any person who is liable, by any Indian
law, to be tried for an offence committed beyond India shall be dealt with according to the
provisions of the IPC for any act committed beyond India in the same manner as if such act
had been committed within India. Thus, there does not seem too much jurisprudence in India
on the issue of jurisdiction in cases of e-commerce.

-OTHER CASES
Yahoo! Inc. v. Akash Arora and another.18
The first case in India with regard to cybersquatting was Yahoo Inc. v. Aakash Arora & Anr.,
where the defendant launched a website nearly identical to the plaintiff’s renowned website
and also provided similar services. Here the court ruled in favour of trademark rights of U.S.
based Yahoo. Inc (the Plaintiff) and against the defendant, that had registered itself as
YahooIndia.com. The Court observed, “It was an effort to trade on the fame of yahoo’s
trademark. A domain name registrant does not obtain any legal right to use that particular
domain name simply because he has registered the domain name, he could still be liable for
trademark infringement.
Tata Sons Ltd & Anr. v. Arno Palmen & Anr19
The Delhi High Court, in its recent judgment dealt with trademark protection for domain
names. The suit was instituted by the plaintiffs against the defendants seeking permanent
injunction against the defendants from using the trademark/domain name
“WWW.TATAINFOTECH.IN” or any other mark/domain name which is identical with or
deceptively similar to the plaintiffs’ trademarks – “TATA” and “TATA INFOTECH”.
Satyam Infoway Ltd. v. Sifynet Solutions Pvt. Ltd.20
In the instant case, the apex Court examined whether internet domain names are subject to
the legal norms applicable to other intellectual properties such as trademarks and be regarded
as
trade names which are capable of distinguishing the subject of trade or service made available
to potential users of the internet.
17
AIR 1988 SC 8313
18
1999 Arb.L.R.620
19
AIR 2005 SC 2456
20
AIR 2004 SC 3540.
 CONCLUSION
An analysis brings forth two important points: that Internet as a medium is here to stay and
that it has to be taken seriously; and that existing intellectual property regime fails when it
deals with computer software on the Internet. The latter point needs a greater focus. There is
a strong regime that protects computer software, off-line, but existing regime fails when
faced with problems that Internet throws up. An issue that arises is whether one wants to
extend existing intellectual property regime to Internet or let Internet find solutions for itself,
as it does in certain cases, with concepts like shareware. There has to be a new system of law
that may govern intellectual property on the Internet? The author holds a view that it does not
make sense to have a new or a Sui generic system of law that would take care of these
problems. While idea that Internet can govern itself and take care of the problems that it faces
is appealing, one has to take into account the quantum of commerce that is being done on the
Internet. This aspect cannot be ignored and in order to facilitate and to protect this large
financial interest, it may be best to have some law in a form that would deal with the issues of
protection of software on the Internet. The question is whether to enact a whole new system
of laws that deal with the Internet in particular or to modify the existing regime. The
enactment of a new system of laws does have its supporters, especially among the software
lobby, but it possess certain problems. It would mean a creation of a new system to enforce
these laws. Moreover, this would lead to destruction of the very concept for which the
Internet has been created, that is, the freedom of
Information. Despite the benefits of e-commerce highlighted above, it is clear that e-
commerce methods vary from its paper-based alternatives. Although the UNCITRAL model
laws attempt at encouraging the implementation of legislation equating e-commerce with the
traditional modes, the risks inherent in e-commerce methods still thrive. Going by the above
discourse, it is apparent that e-commerce is a highly advantageous means of transacting, but
is not without its shortcomings. Furthermore, a legal framework for the regulation of e-
commerce transactions is pertinent for the maximization of the benefits of e-commerce, while
minimizing its disadvantages to the barest minimum. In addition to a regulatory framework,
an implementation mechanism to ensure its efficiency is also relevant to complement such
regulation.
 BIBLIOGRAPHY
Web sources
http://cyberlaws.net/cyber-law-books/legal-framework-on-electronic-commerce-ipr-in-
cyberspace/

http://docs.manupatra.in/newsline/articles/Upload/19A86CE4-2FBD-432B-B166-
AFBA9087A834.pdf

https://www.slideshare.net/tomwinfrey/legal-framework-for-ecommerce-in-ecowas

Books
Ahuja V.K, Intellectual Property Rights in India, (2009) Lexis Nexis Butterworth'sWadhwa,
Nagpur.
Ahmad Tabrez , Cyber Law and E-Commerce, (2003) APH Publishing Corp., New Delhi.
Pawan Duggal, Legal Framework on Electronic Commerce and Intellectual and Property
Rights in Cyberspace, (2007) universal law publication.
Nagpal Rohas, Intellectual Property Issues and Cyberspace, (2008) Asian School of Cyber
Law Publication,Pune.