Cyber Law Unit 2 by Prof.L N. Yadav

Shri Sai College of Engineering & Technology, Bhadrawati
Department of Computer Science & Engineering DBAT University , Lonere
3rd year Semester VI

Course Code : BTCOE504
Subject Name : Cyber Law

LECTURE NOTES
Prepared by : Prof. Lovelesh Yadav

HOD , CSE Dept ,
SSCET , Bhadrawati
Cyber Laws
(BTCOE504)
UNIT-II
• Law Relating To Electronic Records And Intellectual Property Rights
In India
• Legal Aspects of Electronic Records/Digital Signatures
• The Roles and Regulations of Certifying Authorities in India
• Protection of Intellectual Property Rights in Cyberspace in India.
By Prof. Lowlesh N. Yadav , HOD , CSE Dept , SSCET , Bhadrawati

Law Relating To Electronic Records And Intellectual
Property Rights In India
 Legal Aspects of Electronic Records/Digital Signatures
 Recognition of Electronic Records
- Under the Indian law, where it provides that information or any other matter
shall be in writing or in the writing or in the typewritten or printed form, then,
notwithstanding anything contained in such law, such requirement shall be
deemed to have been satisfied if such information or matter is-
• rendered or made available in an electronic form; and
• accessible so as to be usable for a subsequent reference.
- The above provision of a law provides that if any information or matter is
rendered or made available in an electronic form, and accessible so as to be
usable for a subsequent reference, shall be deemed to have satisfied the
requirement of the law which provides that information or any matter shall be in
writing or in the typewritten form.
-Section 4 provides legal recognition to electronic record and that where any
law requires that any information or matter should be in the typewritten or
printed form, then such requirement shall be deemed to be satisfied if it is an
electronic form.
-This provision is based on Article-5 of UNCITRAL Model Law which states
that any information shall not be denied legal effect, validity or enforceability
solely on the grounds that it is in the form of a data message.
-Moreover, UNCITRAL Guide to Enactment states that Article 5 embodies the
fundamental principle that there should be no disparity of treatment between
data messages and paper documents which is called the doctrine of “functional
equivalence.
-The form in which certain information is presented or retained Can not be used
as the only reason for which that information is denied legal effectiveness,
validity or enforceability. But Article 5 does not establish that effectiveness,
validity of enforceability of data.
• Even in US the ‘Uniform Electronic Transaction Act (25 November 1997
draft) Section 201 provides the following: _
(a) A record may not be denied legal effect, validity or enforceability solely
because it is in the form of an electronic record
(b) If a rule of law requires a record to be in writing, or provides
consequences if it is not, an electronic record satisfies that rule.
(c) A person may establish reasonable requirements regarding the type of
records, which will be acceptable to it.

 UNCITRAL Model Law
- UNCITRAL Guide to Enactment states that Article 6, of the UNCITRAL Model
Law is intended to define the basic standards to be met by a data message in
order to satisfy a requirement that information be retained or presented ‘in
writing’ or that it be contained in a ‘document’ or other paper-based instrument.
- In many jurisdictions, the concept of ‘writing’, ‘original’ and ‘signature’
overlap, but the Model Law approaches them as three separate and distinct
concepts. However, the three articles share a common structure and should be
read together’.
- Even the convention on the Recognition and Enforcement of Foreign Arbitral
Awards (the New York Convention), deals not only with the form of arbitration
agreement to be recognized, but also the arbitral award.
- In respect of arbitration agreements, it requires recognition of an agreement in
writing and also specifies that an agreement includes a clause in a contract or
arbitration agreement ‘signed’ by parties or contained in an exchange of letters
or telegrams.
 The Legal Recognition of Electronic/Digital Signatures
- In India where any law provides that information or any other matter shall be
authenticated by affixing signature or any document shall be signed or bear the signature of
any person, then, anything contained in such laws, such requirement shall be deemed to have
been satisfied if such information or matter is authenticated by mean of electronic signatures
affixed in such a manner as may be prescribe by central government
 UNCITRAL Model Law
Article 7 of UNCITRAL Model Law relating to digital signature provides:
(1) Where the law requires a signature of a person, that requirement is met in relation to a
data message if—
(a) A method is, used to identify that person and to indicate that person’s approval of the
information contained in the data message; and
(b) that method is a reliable as was appropriate for the purpose for which the data message
was generated or communicated, in the light of all the circumstances, including any relevant
agreement.
(2) Paragraph (1) applies whether the requirement therein is in the form of : an obligation or
whether the law simply provides consequences in the form of an obligation or whether law
simply provides consequence in absence of a signature.
-Article 7 of UNCITRAL Model Law is based on the recognition of the functions of a
signature in a paper-based environment some of which are for the following purposes:
• Identify a person;
• Provide certainty as to the personal involvement of that person in the act of signing;
• Associate that person with the content of a document;
• Attest to the intent of a person to endorse authorship of a text;
• Attest to the intent of a person to associate itself with the content of a document written by
someone else;
• Attest to the fact that, and the time when a person had been at a given place.
-Paragraph 1(a) of UNCITRAL Guide to Enactment establishes the principle that in an

electronic environment, the basic legal functions of a signature are performed by way of a
method that identifies the originator of a data message and confirms that the originator
approved of the content of that message.
-Paragraph 1(b) of the above enactment establishes a flexible approach to the level of security to
be achieved by the method of identification used under paragraph 1(a). In determining whether
the method mention in para (1) js appropriate legal, technical and commercial factors should be
taken into account Some of these include, the following:
• The sophistication of the equipment used by each parties;
• The nature of their trade activity;
• The frequency at which commercial transactions take place between the parties; |
• The function of signature requirements in a given statutory and regulatory environment;
• Compliance with authentication procedures set forth by intermediaries:
• Compliance with trade customs and practice;
• Existence of insurance coverage mechanisms against unauthorized messages;
• The availability of alternative methods of authentication and the cost of implementations;
• The degree of acceptance or non-acceptance of the methods of identification in the relevant
industry or field at the time method was agreed upon and the time the data message was
communicated and so on.
 The Position in the US
-In the US the legal recognition of electronic signature—

(a) A may not be denied legal affect, validity or enforceability solely because it is in the form
of electronic signature.
(b) If a rule of law requires a signature or provides consequences in the absence of signature,
the Rule of law is satisfied with respect to an electronic record if the electronic record
includes an electronic Signature.
(c) A party may establish reasonable requirements regarding the method and type of
signatures, which will be acceptable to it.
- According to the US law, ‘Electronic Signature’ means any signature in electronic form,
attached to logically associated with an electronic record, executed or adopted by a person or
his electronic agent with an intent to sign the electronic record’.

- Further, in US, law, ‘signature’ means any symbol, sound, process or encryption or a record
in whole or in part executed or adopted by a person or the person’s electronic agent with an
intent to—
• identify the party;
• adopt or accept a term or record;
• establish the information integrity of a record or term that contains
• the signature or to which a record containing the signature refers.
• The critical issue in the context of both a signature or electronic signature is what the signer
intended when the symbol was executed, attached or incorporated into the record.
The effect and proof of electronic signatures are as follows:
(a) Unless the circumstances otherwise indicate that a party intends less than all the effect and
electronic signature is intended to establish—

(1) the signing party’s identity;
(2) its adoption and acceptance of a record or a term; and
(3) the informational integrity of the record or term to which the electronic signature is
attached or with which it is logically associated.
(b) If the signing party executed or adopted the electronic signature in accordance with a
security procedure, the electronic record to which the electronic signature is attached or with
which it is logically associated is presumed to be signed by the signing party. Otherwise, an
electronic signature may be proven in any manner, including by showing that—
(1) A procedure existed by which a party must of necessity have signed, or manifested assent
to a record of term. In order to proceed further in the processing of the transaction or
(2) that the party is bound by virtue of the operation of its electronic agent.
(c) The authenticity of and authority to make an electronic signature is admitted unless
specifically denied in the pleadings. If the validity of an electronic signature is denied in the
pleadings, the burden of establishing validity is on the person claiming validity

 The Position in Australia
- In Australia many law require a signature that a document is signed by particular person and that be
signed in writing . In all these requirement ,the signature be seen to be performing a different kind of a
function.
- These might include identifying a person, providing certainty personal involvement of that person in
the act of signing, associating that person with the content of a document, attesting to the intent of a
person to endorse authorship of a text, attesting to the intent of a person to associate himself with the
content of a document written by someone else, and attesting to the fact that and the time when a
person had been at a given place.
- In Australia, the courts have interpreted ‘signed’ and ‘signature’ very widely, depending upon the
nature of the requirement for a signature or a document be signed.
- The courts in Australia have held that signature signals endorsement or acknowledgment of the
document as well as identifying the party to sign the document.
- The courts view in Australia that the signature does not necessarily have to be handwritten and in
some cases it does not have to be party’s actual signature, and initials have been held to be sufficient
under the law.
- In a case in Australia, the court held that the object of all statutes which require a document to be
signed by a particular person is to authenticate the genuineness of the document. And where the statute
does not require that the document be signed with the name of the party signing a cross or initials or
part only of a full name will suffice
 Electronic Records and Electronic Signatures/Digital Signatures and Their Use
by the Government and its Agencies in India
In India-
(1) where any law provides for—
(a) the filing of any form, application or any other document with any office, authority, body or agency
owned or controlled by the appropriate government in a particular manner;
(b) the issue or grant of any license, permit, sanction or approval by whatever name called in a
particular manner; and
(c) the receipt or payment of money in a particular manner, then, notwithstanding anything contained
in any other law for the time being in force, such requirement shall be deemed to have been satisfied if
such filing, issue, grant, receipt, or payment, as the case may be, is effected by means of such
electronic form as may be prescribed by the appropriate government.
(2) The appropriate Government may, for the purposes of sub-section of(1), by rules, prescribe—
(a) the manner and format in which such electronic records shall be filed created or issued; and
(b) the manner or method of payment of any fee or charges for filing, creation or issue any electronic
record under clause (a).

-The appropriate government may, for the purposes of IT Act 2000 and for efficient delivery
of service to the public through electronic means authorize any service provider to setup,
maintain and upgrade the computerized facilities, and perform such other services as may be
specified by notifications in the Official Gazette.
-Such service providers may be also authorized to collect, retain and appropriate such service
charges as may be prescribed by the appropriate government.
- Even if there is no express provision under the Act, rule, or regulation or notification, the
appropriate government may also specify different scale of service charges for different types
of services

 Retention of Electronic Records in India
- In India-
(1) where any law provides that documents, records or information shall be retained for any
specific period, then that requirement shall be deemed to have been satisfied if such
documents, records or information are retained in the electronic form if the—
(a) information contained there in remains accessible so as to be usable for a subsequent
reference;
(b) electronic record is retained in the format in which it was originally generated, sent or
received or in a format which can be demonstrated to represent accurately the information
originally generated, sent or received; and
(c) details which will facilitate the identification of the origin, destination, date and time of
dispatch or receipt of such electronic record are available in the electronic record;
-Provided that this clause does not apply to any information which is automatically generated
solely for the purpose of enabling an electronic record to be dispatched or received.
(2) Nothing in this Section shall apply to any law that expressly provide for the retention of
documents, records or information in the form of electronic record . If the law requires for
provision for audit of documents, records or information that provision of law shall also be
applicable for documents, records or information processed and maintained in the electronic
form.

 UNCITRAL Model Law Relating to Retention of Data Messages
- Article 10 of UNCITRAL Model Law provides—
(1) Where the law requires that certain documents records or information be retained that
requirement is met by retaining data messages, provided that the following conditions are
satisfied:
(a) The information contained therein is accessible so as to be usable for subsequent reference;
(b) The data message is retained in the format in which it was generated, sent or received, or in
a format which can be demonstrated to represent accurately the information generated, sent or
received; and
(c) Such information, if any, is retained as enables the identification of the origin and
destination of a data message and the date and time when it was sent or received.
(2) An obligation to retain documents, records or information in accordance with paragraph (1)
does not extend to any information, the sole purpose of which is to enable the message to be
sent or received.
(3) A person may satisfy the requirement referred to in paragraph (1) by using the services of
any other person, provided that the conditions set forth in sub-paragraphs (a), (b) and (c) of
paragraph (1) are met.
-In practice, storage of information and especially storage of transmittal
information may often be carried out by someone other than the originator or the
addressee, such as an intermediary.
- Nevertheless, it is intended that the person obligated to retain certain
transmittal information cannot escape meeting that obligation simply because,
for example, the communication system operated by that other person does not
retain the required information.
- This is intended to discourage bad practice or willful misconduct.
- Paragraph (3) provides meeting its obligation under paragraph (1), an
addressee or originator may use the services of any third party, not just an
intermediary

 Position in the US
-Under the Uniform Electronic Transactions Act (25 November 1997 draft) Section 205 deals
with provisions for retention of electronic record .under the law, if certain documents, records
or information be retained, as electronic records it will satisfy the requirement of the retention
under the law if—
(1) the information contained in the electronic record remains accessible so as to be usable for
subsequent reference;
(2) the electronic record is retained in the format in which it was generated, stored, sent or
received, or in format that can be demonstrated to reflect accurately the information as
originally generated, stored, sent or received; and
(3) the information, if any, is retained as enables the identification of the source of origin and
destination of an electronic record and the date and time when it was sent or received.

 Position in India
• In India, wherever any law provides that any rule, regulations or order, bye- law, notification
or any other matter shall be published in the Official Gazette, then such requirements shall
be deemed to have been satisfied if such rules of regulations are published either in the
Official Gazette or in the electronic gazette, and if they are published, shall be deemed to be
the date of that Official Gazette which was first published in either form.
• However, it has been specifically provided under the law in India that nothing in the
provisions about the use of electronic record and electronic/digital signature in government
and its agencies, about the retention of the requirement of the publication of rules,
regulations, and the requirement of the publication of electronic gazette shall confer a right
upon any person to insist that any Ministry or Department of the Central Government or the
State Government or any authority or body established by or under any law or controlled or
funded by the Central or State Government should accept, issue, create, retain and preserve
any document in the form of electronic records or effect any monetary transaction in the
electronic form.

 The Central Government’s Power to Make Rules in India
- In India the Central Government has been given the power to frame rules with respect
to proper, effective and legally valid rules in connection with the electronic/digital
signatures. These rules, the Central Government may frame, with respect to the
electronic/digital signatures for the following purposes:
• The type of electronic/digital signature
• The manner and format in which the electronic/digital signature shall be affixed
• The manner or procedure which facilitates identification of the person affixing the
electronic/digital signature
• Control processes and procedures to ensure adequate integrity, security and
confidentiality of electronic records or payments
• Any other matter which is necessary to give legal effect to electronic/ digital
signatures.
- Where in a contract formation, the communication, the acceptance, the revocation of
proposals and acceptances are expressed in electronic form or by means of an
electronic record, such contract shall not be deemed to be unenforceable solely on the
ground that such electronic form or means was used for that purpose.
- In this connection, the Central Government has framed rules with respect to electronic
records and digital signature in the year 2004. Rule 3 of these rules provide for filing of
form, application or any other document may be filed with any office, authority, body or
agency owned or controlled by the appropriate government using software specified by it.
And, such office, authority, body or agency, while generating such software, shall take into
account the following electronic records: :
• Life time
• Preservability
• Accessibility
• Readability
• Comprehensibility in respect of linked information
• Evidentiary value in terms of authenticity and integrity
• Controlled destructibility
• Augmentability.
-And any license, permit, sanction or approval whatever name called referred to in clause (b)
of Sub-section (1) of Section 6 of the Act may be issued or granted by using the software
specified under the Rule 3.
 Electronic Records: Attribution Acknowledgement and Dispatch in India
- Based on Article 13 of the UNCITRAL Model Law, the Indian law relating to attribution of
electronic record shall be attributed to the originator—
• if it was sent by the originator himself;
• by a person who had the authority to act on behalf of the originator in respect of that
electronic record; or
• by an information system programmed by or on behalf of the originator to operate
automatically’.
- The above provision states that if any electronic record was sent by the originator himself or
by a person who had the authority to act on behalf of the originator or by an information
system programmed by or on behalf of the organizer to operate automatically, then the
electronic record shall be attributed to the originator.

 UNCITRAL Model Law on Attribution of Data Messages
Article 13 of the UNCITRAL Model Law provides—
(1) A data message is that of the originator if it was sent by the originator itself.
(2) As between the originator and the addresses, a data message is deemed to be that of the
originator if it was sent by
• person who had the authority to act on behalf of the originator in respect of that data
message: or .
• an information System programmed by or on behalf of the Originator to operate
automatically
(3)As between the originator and the addresses, an addressee is entitled to regard a data
message as being that of the originator and to act on that assumption if
(a) in order to ascertain whether the data message was that of the originator, the addressee
properly applied a procedure previously agreed to by the originator for that purpose; or
(b) the data message as received by the addressee resulted from the actions of a person whose
relationship with the originator or with any agent of the originator enabled that person to gain
access to a method used by the originator to identify data message as its own.

 The Position in the US
- Similarly, the US law is based on Article 13 of the UNCITRAL Model Law. The US law
about attribution of data message provides—
(a) As between the parties, an electronic record is attributable to a party if—
(1) it was in fact the action of that party, its agent, or electronic agent;
(2) the other party, in good faith and in compliance with a security procedure concluded that it
was the action of the other party, its agent, or electronic agent; or
(3) the electronic record—
(i) resulted from acts of a person that obtained access to a security procedure, access
numbers, codes, computer programs or like from a source under the control party creating the
appearance that the electronic record came from that party;
(ii) the access occurred under circumstances constituting a failure to exercise reasonable care
by the party; and
(iii) the other party reasonably relied to its detriment on the apparent source of the electronic
record.
(b) ...
(c) Attribution of an electronic record to a party under Sub-section (a) (2) creates a
presumption that the electronic record was that of the party to which it is attributed. Under the
US Law, the term “electronic agent’ means a computer program or other electronic or
Automated means used, selected, or programmed by a party to initiate or respond to electronic
records or performances in whole or in part without review by an individual

• Acknowledgement of Receipt of Electronic Record in India
-The Indian law relating to acknowledgement of receipt is primarily based op the UNCITRAL
recommendations for acknowledgment of receipt of electronic records under Article 14. In India—
(1) where the originator has stipulated that the acknowledgement of receipt of electronic record be
given in a particular form or by a particular method, an acknowledgement may be given by—
(a) any communication by the addressee, automated or otherwise; or
(b) any conduct of the addressee, sufficient to indicate to the originator that the electronic record has
been received.
(2) Where the originator has stipulated that the electronic record shall be binding only on receipt of an
acknowledgement of such electronic record by him, then, unless acknowledgement has been so
received, the electronic record shall be deemed to have been never sent by the originator.
(3) Where the originator has not stipulated that the electronic record shall be binding only on receipt of
such acknowledgement, and the acknowledgement has not been received by the originator within a
reasonable time, the originator may give notice to the addressee stating that no acknowledgement has
been received by him and specifying a reasonable time by which the acknowledgement must be
received by him and if no acknowledgement is received within the aforesaid time limit he may, after
giving notice to the addressee, treat the electronic record as though it has never been sent”. ,
- The above Section stipulates for the acknowledgement of receipt of an electronic record by various
modes.
 UNCITRAL Model Law Relating to Acknowledgement of Data Message
• Article 14 of the UNCITRAL Model Law provides—
(1) Paragraph (2) to (4) of this Article apply where, on or before sending a data message the
originator has requested or has agreed with the addressee, that receipt of the data message be
acknowledged.
(2) Where the originator has not agreed with the addressee that acknowledgement given in a
particular form or by particular method an acknowledgement may be given by—
(a) any communication by the addressee, automated or otherwise
(b) Any conduct of the addressee sufficient to indicate to the originator that the data message
has been received.
(3) Where the originator has stated that the data message is conditional on receipt of the
acknowledgement the data message is treated as though it has never been sent, until the
acknowledgement is received.
(4) Where the originator has not stated that the data message is conditional on receipt of the
acknowledgement and the acknowledgement has not been received by the originator within
the time specified or agreed or, if no time has been specified or agreed, within a reasonable
time to the originator.
-The provisions of Article 14 are based on the assumption that acknowledgement procedures
are to be used at the discretion of the originator. It is not intended to deal with the legal
consequences that may flow from sending an acknowledgement of receipt, apart from
establishing receipt of the data message.
- The utility of functional acknowledgement is a business decision to be made by users of
electronic commerce whether or not sending that acknowledgement would amount to an
acceptance of the offer is left to general contract law.

• The Position in the US
-The US law, an electronic acknowledgement of receipt provides—
(1) If the sender of a record requests or agrees with the recipient of the record that receipt of
the record does not bind the sender until acknowledgement is received and expires if
acknowledgement is not received in a reasonable time after the record was sent.
(2) If the sender requests electronic acknowledgement but does not state that the record is
conditional on electronic acknowledgement and does not specify a time for receipt and
electronic acknowledgement is not received within a reasonable time after the record is sent,
the sender, on notice to the other party, may either treat the record as having expired or specify
a further reasonable time within which electronic acknowledgment must be received or the
message will be treated as having expired. If electronic acknowledgement is not received
within that additional time, the sender may treat the record as not having binding effect.
(3) If the sender requests electronic acknowledgement and specifies a time for receipt, if
receipt does not occur within that time, the sender may for treat the record as having expired

• The Time and Place of Dispatch and Receipt of Electronic records in
India
-One of the main issue is when a message is considered sent or received when it is transmitted through different
electronic mechanism. In order to remove many of the difficulties and ambiguities the cyberspace laws about
acknowledgement of receipt of data message and the time and place of dispatch and receipt of electronic records
have been provided under the law. In India, the law about time and place of dispatch and receipt of electronic
records provides:
(1) Save as otherwise agreed to between the Originator and the addressee, the dispatch of an electronic record
occurs when it enters a computers resource outside the control of the originator.
(2) Save as otherwise agreed to between the Originator and the addressee, the time of receipt of an electronic
record shall be determined as follows:
(a) If the addressee has designed a computer resource for the purpose of receiving electronic records,
(i) receipt occurs at the time when the electronic records enters the designed computer resource; or
(ii) if the electronic record is sent to a computer resource of the addressee that is not the designed computer
resource receipt Occurs at the time when the electronic record is retrieved by the addressee; |
(b) If the addressee has not designated a computer resource along with the specified timings, if any, receipt when
the electronic record enters the computer resource of the addressee.

(3) Save as otherwise agreed to between the originator and the addressee, an
electronic record is deemed to be dispatched at the place where the originator has
his place of business and is deemed to be received at the place where the
addressee has his place of business.
(4) The provision of Sub-section (2) shall apply notwithstanding that the place
where the computer resource is located may be different from the place where
the electronic record is deemed to have been received under Sub-section (3).
(5) For the purposes of this Section—
(a) If the originator or the addressee has more than one place of business, the
principal place of business, shall be the place of business;
(b) If the originator or the addressee does not have a place of business, his usual
place of residence shall be deemed to be the place of business;
(c) ‘Usual place of residence’ in relation to a body corporate, means the place
where it is registered

 UNCITRAL Model Law on Time and Place and Receipt of Data Messages
-As the Indian law by and large follows UNCITRAL Model Law, we shall discuss the UNCITRAL
Model Law on time and place of dispatch and receipt as follows:
Under Article 15 of the UNCITRAL Model Law—
(1) Unless otherwise agreed between the originator and the addressee, the dispatch of a data message
occurs when it enters an information system outside the control of the originator or of the person who
sent the data message on behalf of the originator.
(2) Unless otherwise agreed between the originator and the addressee, the time of receipt of a data
message is determined as follows:
(a) If the addressee has designed an information system for the purpose of receiving data message
receipt occurs—
(i) at the time when the data message enters the designed information system; or
(ii) If the data message is sent to an information system of the addressee that is not the designed
information systems, at the time when the data message is retrieved by the addressee.
(b) Paragraph (2) applies not with standing that the place where the information system is located may
be different from the place where the data message is deemed to be received under paragraph (4)

-For the application of the existing principles of law, it is important to ascertain
the time and place of receipt of information of the data messages.
-We find the use of electronic communication technique makes those rules
difficult to ascertain the uses of electronic commerce to communicate from one
State to another without knowing the location of any information is very common
through which the communication is effected.
-The Model law is intended to reflect the fact that the location of information
systems Is irrelevant therefore, lays down more objective criteria that 1s, the place
of business of parties.

 Position in the US
-Under the US law, the time and place of sending and receipt of data messages is as follows: 7
(a) Unless otherwise agreed between the sender and the recipient, an electronic record is sent
when it enters an information system outside the control of the sender or of a person who sent
the electronic record on behalf of the sender. 7
(b) Unless otherwise agreed between the sender and the recipient, an electronic record is
received when recipient 1s able to retrieve electronic records, in a form capable of being
processed by that system, and the recipient uses or has designed that system for the purpose of
receiving such records or information. In addition, an electronic record is received when it
comes to the attention of the recipient.
(c) Sub-section (b) applies even if the place where the information system is located is
different from the place where the electronic record 1s considered to be received under Sub-
section (d).

(d) Unless otherwise agreed between the sender and the recipient, an electronic
record is deemed to be sent from where the sender has its place of business and
is deemed to be received where the recipient has its place of business. For the
purposes of this sub-section—
(1) If the sender or recipient has more than one place of business, the place of
business is that which has the closest relationship to the underlying transactions
or, if there is no underlying transaction, the principal place of business; and
(2) If the sender or the recipient does not have a place of business, the place of
business 1s the recipient’s habitual residence.
(e) Subject to Section 403, an electronic record is effective when received, even
if no individual is aware of its receipt

• As in the regime of the Internet where e-commerce transactions are not specific to the time
and place of the parties entering into agreements with the help of e-commerce and
electronic/digital signatures, therefore, there are ambiguities in the electronic world to find
out the exact time and place of the formation of contracts.
• It is precisely for this reasons that the cyber laws have to give importance to the place of
business of the parties for a showing the formation of the contract.
• Thus, the trend of the cyber laws which are primarily based on the UNCITRAL Model Law
about the time and place of data message though the Internet regime gives significant
importance to the place of business of the parties for conclusion or formation of the contract
whether in India or in the US.

 Securing Electronic Record and Electronic/Digital Signatures in India
- In the age of e-commerce where the electronic records and digital signatures one are of
crucial significance for proper functioning of e-commerce and businesses in the globalized
free market economy it is imperative that the transactions of a e-commerce in the form of
electronic record and electronic/digital signatures should be secure, authentic and must be
suitably confidential from the general public and the third parties.
- The relevant parties to the electronic records and electronic/digital signatures must be
confident while conducting e-commerce or business that their transactions are secure and
cannot be tampered with by any or unrelated persons to the transactions of e-commerce
between the relevant parties.
- Therefore, in order to have proper security procedures to secure electronic records and
electronic/digital signatures, proper cyber laws are very essential. And many countries in the
world have tried to frame such laws suiting to their unique business environment, the
political system and the necessity of properly conducting e-commerce or business in the
modern world of cyberspace and the Internet.

-Section 14 of the IT Act, 2000 provides that an electronic record would be deemed to be secure
if any security procedure has been applied to an electronic record. And it shall be deemed
secure from the time the security procedure was applied, up to the point of time of ‘verification.
- What could be the security procedure has not been clarified and what security procedure
would be valid under the law has not been explained. It appears that the scope of the security
procedure is very wide.
- Whereas encryption provides a mechanism for providing security of content, some other
techniques also need to be used to satisfy authentication.
- In a written transaction, the signature on the document or contract serves the purpose of
authenticating the document, and to identify and bind the person who signed. Moreover, if the
name were inserted into a document of acknowledgement in such a way as to signify that the
acknowledgement was intended to be his own, such a name, whether written or printed,
would constitute his signature.

-In Indian Law the main provision which provides for the legal recognition of
electronic signature as a substitute for hand-written signature is provided under
Section 5 of the IT Act.
-This section also provides that this recognition would be available if the
electronic signature is fixed in such a manner as is prescribed by the Central
Government.
-The Central Government has been given the power to make rules for electronic
signatures under Section 10 of the said Act. Moreover, it is provided for the
authentication and to secure electronic signatures.
-In case of digital signature, the ‘signature creation data” mean the private key of
the subscriber

 Verification of Electronic Signatures in India
-The verification of an electronic/digital signature shall be accomplished by computing a new
hash result of the original electronic record by means of the hash function used to create a
electronic/digital signature and by using the public key and the new hash result, the verifier
shall check—
(i) if the digital signature was created using the corresponding private key and
(ii) if the newly computed hash result matches the original result which was transformed into
digital signature during the signing process. The verification software will confirm the Digital
Signature as verified if—
(a) the signer’s private key was used to digitally sign the electronic record, which is known to
be the case if the signer’s public key was used to verity the signature because the signer’s
public key will verify only a digital signature created with the signer’s private key.
(b) the electronic record was unaltered which is known to be the case id the hash result
computed by the verifier is known to be the case identical to the hash result extracted from the
digital signatures during the verification process.

 Central Government’s Power to Prescribe Security Procedure
-It is for the Central Government to prescribe the Security procedure with respect to secure
electronic records and electronic signatures.
-While exercising its power for prescribing security procedure the, Indian law states that
central Government prescribe such security procedure having regard to commercial
circumstances at the time when the procedure was used including following:-
 Nature of the transaction
Level of sophistication of the parties with reference to their technological capacity
Volume of similar transactions engaged in by other parties .
Availability of alternatives offered to but rejected by any party.
 Cost of alternative procedures
Procedures in general use for similar types of transaction or communications
- The Central Government may, for the purposes of Sections 14 and 15, prescribe the security
procedures and practices.

Conclusions
-We see that means of communication, business and commerce are continuing to
change across the international boundaries. The modern electronic technology such as
Electronic Data Interchange (EDI), the Internet and e-mails allow speedier and
cheaper transactions between franchisors, franchisees and customers.
- The electronic communications can be used for advertising, marketing and
promotion of business, training materials, manual revisions, supplier’s information,
transmittal of software upgrades and many other functions.
- But the new innovations and opportunities bring their own new challenges. The
changes in electronic technology bring new legal issues to the fore and the domestic
and international laws are slow to respond to the requirements of the new
technology.
- Thus, it is advisable for the Indian business community, to be well acquainted with
the latest technology and advise the government to make suitable changes in the law,
keeping in view the demands of the latest electronic technology.
The Roles and Regulations of Certifying Authorities in India
 The Scenario
• Software is playing an important role in using the enhanced capabilities of processing, storage and
communication technologies which will create new environment that will increase interactivity among various
computing device and application. Software development has made possible massively distributed computing
known as community computing.
• In India, therefore, electronic/digital signatures means authentication of any electronic record by a subscriber
by means of an electronic method or procedure in accordance with the provision of Section 3 of the IT Act.
 The Role of Certifying Authority (CA)
• The Certifying ‘Authority (CA) acts as a trusted third party in the public key infrastructure. And the CAs
important role is to certify that a public key is associated with a given or particular individual. Such an
association is important in the verification for the purpose of authentication which gives reliability to digital
signature.
• We find that these are various methods and ways of describing what an electronic/digital signature is. We may
mention that the non legal basis of the definition of digital signature or digital data which grant both the parties
participating in a message the certainty and the integrity they need for the formation of online contracts or long
distance transactions

• the authenticity of the subject participating in the commercial communication;
• the integrity of the message communicated or the communication. The authenticity, integrity
and confidentiality can be ensured by the independent third party, that is the proper CAs
under the law. The Certifying Authority could either be a public authority or a private
authority.
- It is the important role of the CAs that they should make such easily accessible Certification
Practices Statement which clearly states the kind of practices that CAs employ in issuing
certificates.
- A CA must also make its own Certificate regarding its public key available to the parties
who want to verify the certificates of consumers or users and if a CA fails to perform its
duties which result in significant losses on a large number of innocent parties, then such
parties, could be compensated for their losses.

 Appointment of Controller and His Functions
- The Indian Law requires that the Central Government may appoint a Controller of Certifying
Authorities for the implementation purpose of this Act.
- The Central Government may also appoint a number of Deputy Controllers and Assistant
Controller, other officers and employees as the government deems fit. The Controller is
supposed to discharge his functions as required under the Act. And his functions are subject
to the general control and directions of the central government.
- The Deputy Controller and Assistant Controller and other officer and employees shall
perform their functions as assigned to them by the Controller under his general
superintendence and control. The qualifications for the appointment of Controller, Deputy
Controller and Assistant Controller are to be prescribed by the Central Government.
- The Head Office and Branch office of the Controller are to be specified by the Central
Government and are to be established at such places as the Central Government may think
fit.
- Under the IT Act, 2000, the Controller has very important functions to perform for the
implementation of the objects of the Act and as well as regulating, supervising and laying
down standards for the activities of the CAs which perform important functions for the
functioning of the control over the cyberspace and the internet.
- For the purpose of effectively & usefully regulating the authentic and properly identifiable
transactions, there is a need for not only national CAs but also due regard to the foreign CAs
to be recognized under the law. Central govt. approval and by notification in the official
gazette recognize any foreign CA for the purpose of act .
- IT’ architecture for CAs may support open standards and accepted de facto standards; the
most important standards that may be considered for the different activities associated with
the CA’s functions.
 Obtaining License to Issue Electronic/Digital Signature Certificates in
India
-Subject to the provision of sub-section (2) Section 21 of the IT Act, any person may make
application to the Controller for a license to issue the Electronic/ Digital Signature Certificate.
And no license shall be issued unless that applicant fulfils such requirements with respect to
qualification, expertise, manpower, financial sources and other infrastructure facilities, which
are necessary to issue Electronic/Digital Signature Certificate as may be prescribed by the
Central Government.

- A license granted by the Controller shall—
• Be valid for such period as may be Specified by the Central government; an
• not be transferable or heritable;
• Be subject to such terms and conditions as may be specified by the regulations
- Under the Indian law, the following Persons may apply for grant of license to issue Digital Signature
Certificate ,
(a) an individual, being a citizen of India & having capital five crore of rupees or more in his business
or Profession:
(b) a company having—
(i) Paid up capital of not less than five crores of rupees; and
(ii) Net worth of not less than fifty crores of rupees:
- Provided that no company in which the equity share capital held in aggregate by the Non Resident
Indian, Foreign Institutional Investors, or foreign companies, exceeds forty-nine per cent of its
capital, shall be eligible for grant of license.
- The above rule makes it clear that no NRI, foreign national or foreign company should have majority
of shares in the company in India if they want to get a license for issue of Electronic/Digital
Signature Certificate as a proper and valid CA.

• In India, every application for issue of a license shall be in such form as may be prescribed
by the Central Government. Every application for issue of a license shall be accompanied
by—
(a) certification practice statement:
(b) a statement including the procedures with respect to identification of the applicant;
(c) payment of such fees, not exceeding twenty-five thousand rupees as may be prescribed by
the Central Government;
(d) such other documents, as may be prescribed by the Central Government’.
- For the purposes of getting a license for a CA, it is provided under the rules that every
application shall be made to the Controller—
(i) in the form given in schedule-I; and
(ii) in such manner as the controller may, from time to time, determine, supported by such
documents and information as the controller may require and it shall inter alia include:
(a) a Certificate Practice Statement(CPS);
(b) A statement including the procedures with respect to identification of the applicant;
(c) a statement for the purpose and scope of anticipated Digital Signature Certificate
technology, management, or operations to be outsourced etc.
• Renewal and Suspension of License of the certifying Authority
- Once a license has been granted for a specified period it can be renewed if the CA Makes an application for
renewal of a license in the prescribed form and a fee of not exceeding five thousand rupees .
- The Controller has the power to suspend a license of the CA:
- (1) if he is satisfied after making such inquiry as he may think fit on the grounds that a certifying authority
has—
(a) made a statement in, or in relation to, the application for the issue or renewal of the license, which is incorrect
or false in material particulars;
(b) failed to comply with the terms and conditions subject to which the license was granted;
(c) failed to maintain the standards specified under the clause(b) of sub-section(2) of Section 20;
(d) contravened any provisions of this Act, rule, regulation or order made thereunder; revoke the license:
- Provided that no license shall be revoked unless the Certifying Authority has been given a reasonable
Opportunity of showing cause against the proposed revocation.
(2) The controller may, if he has reasonable cause to believe that there is any ground for revoking a license under
sub-section (1), by order, suspend such license pending the completion of any enquiry ordered by him:
-Provided that no license Shall be suspended for a period exceeding ten days unless the CA has been given a
reasonable opportunity of showing Cause against the proposed Suspension.
(3) No Certifying Authority Whose license has been suspended shall issue any Electronic/Digital Signature
Certificate during such suspension
• Procedure for the Grant or Rejection of License to the Certifying Authority (CA)
- the Controller has the power after considering the application for a license to refuse to grant or renew a license
on the following grounds:
(i) the applicant has not provided the controller with such information relating to its business, and to any
circumstances likely to affect its method of conducting business, as the controller may require, or
(ii) the applicant is in the course of being wound-up or liquidated; or
(iii) a receiver has, or a receiver and manager have, been appointed by the court in respect of the applicant; or
(iv) the applicant or any trusted person has been convicted, whether in India or out of India, of an offence the
conviction for which involved a finding that it or such trusted person acted fraudulently or dishonestly, or has
been convicted of an offense under the Act or these rules: or
(v) the controller has invoked performance bond or banker’s guarantee; or
(vi) a Certifying Authority commits breach of, or fails to observe and comply with, the procedures and practices
as per the Certification Practice Statements; or
(vil) a Certifying Authority fails to conduct, or does not submit, the returns of the audit in accordance with rule
31; or
(Viii) ‘the audit report recommends that the Certifying Authority is not worthy of continuing Certifying
Authority’s operation; or
(ix) A CA fails to comply with the directions of the Controller
 Some Procedures and Security Guidelines for Certifying Authorities
(CAs)
Every CA is expected to—
• make use of hardware, software and procedures that are secure from intrusion and misuse;
• provide a reasonable level of reliability in its services which are reasonably suited to the
performance of intended functions,
• adhere to security procedures to ensure that the secrecy and privacy of the electronic
signatures are assured; and
• observe such other standards as may be specified by regulations.
The following are the Security Guidelines for the CAs:
(1) The Certifying Authorities shall have the sole responsibility of integrity: confidentiality
and protection of information and information assets employed in its operation, considering
classification, declassification, labelling, storage, access and destruction of information assets
according to their value, sensitivity and importance of operation.

(2) Information Technology Security Guidelines and Security Guidelines for Certifying
Authorities aimed at protecting the integrity, confidentiality and availability of service of
Certifying Authority are given in Schedule-II and Schedule-IIJ respectively.
(i) The Certifying Authority shall formulate its Information Technology and Security policy
for operation complying with these guidelines and submit it to the Controller before
commencement of operation;
(ii) Provided that any change made by the Certifying Authority in the information technology
and security policy shall be submitted by it within two weeks to the Controller!
Moreover, under the law every CA is expected to ensure that every person employed or
otherwise engaged by it complies, in the course of his employment or engagement with the
provisions of this Act, rules, regulations or orders made there under. The licensed CA shall
commence its commercial operation of
generation and issue of electronic/digital signature only after—
(a) It has confirmed to the controller the adoption of Certification Practice Statement;
(b) It has generated its key pair, namely, private and corresponding public key, and submitted
the public key to the controller

• Procedure and Prior Requirements for Surrender of License, and
Cessation as Certifying Authority (CA)
-The CA whose license is suspended or revoked shall immediately after suspension or
revocation surrender the license to the Controller. And where any CA fails to surrender a
license, the person in whose favour a license, has been issued shall be guilty of an offence and
shall be punished with imprisonment which may extend up to six months or a fine which may
extend up to ten thousands rupees or with both.
Before ‘a CA ceases to act, it shall—
(a) give notice to the Controller of its intention to cease acting as a Certifying Authority:
Provided that the notice shall be made ninety days before the ceasing to act as a Certifying
Authority or ninety days before the date of expiry of license;
(b) advertise sixty days before the expiry of license or ceasing to act as Certifying Authorities
and in such manner as controller may determine;

c) notify its intention to cease acting as a Certifying Authority to the subscriber and cross
Certifying Authority of each unrevoked or unexpired Digital Signature Certificate issued by it:
Provided that the notice shall be given sixty days before ceasing to act as a Certifying Authority
or sixty days before the date of expiry of unrevoked or unexpired Electronic/Digital Signature
Certificate as the case may be;
(d) the notice shall be sent to the Controller, affected subscribers and cross Certifying
Authorities by digitally signed e-mail and registered post;
(e) revoke all Digital Signature Certificates that remain unrevoked or unexpired at the end of
the ninety days notice period, whether or not the subscribers have requested revocation;
(f) make a reasonable effort to ensure that discontinuing its certification service cause minimal
disruptions its subscribers & to persons duly needing to verify digital signature by reference to
the public key contained in outstanding digital signature certificate .
(g) make reasonable arrangements for preserving records for a period of seven years:
(h) pay reasonable restitution to subscribers for revoking the electronic /digital signature
certificate before the date of expiry.
(i)After the expiry mentioned in the license ,CA shall destroy the certificate signing private
key and conform the date & time of destruction of the private key to the controller
 Duties of certifying authorities for the disclosure of information
- Its electronic signature certificate
- Any certification practice statement relevant thereto
- notice of revocation or suspension of its CA certificate
- any other fact that materially & adversely affect either the reliability of electronic signature
certificate .
the Certifying Authority shall—
(a) use reasonable efforts to notify any persons who are likely to be affected by that
occurrence; or
(b) act in accordance with the procedure specified in its certificate practice statement to deal
with such event or situation
 Electronic Signature Certificate to be Issued by Certifying Authorities (CAs)

-The CA, on receipt of an application and after consideration of the Certification Practice
Statement or any other statement and after making such enquiries as it may deem fit, grant the
Electronic Signature Certificate or reject the application with reasons to be recorded in writing as
follows—
(a) The applicant holds the private key corresponding to the public key to be listed in the Electronic
Signature Certificate;
(b) The applicant holds a private key, which is capable of creating a electronic signature;
(c) The public key to be listed in the certificate can be used to verify an electronic signature affixed
by the private key held by the applicant—Provided that no application shall be rejected unless the
applicant has been given a reasonable opportunity of showing cause against the proposed rejection
 Suspension of Electronic/Digital Signature Certificate
-The CA which has issued a Electronic/Digital Signature Certificate may suspend such Certificate
under the following situations—
(a) On receipt of a request to that effect from— :
(i) the subscriber listed in the Electronic/Digital Signature Certificate; or
(ii) any person duly authorized to act on behalf of that subscriber;
(b) If it is of opinion that the Electronic/Digital Signature Certificate should be suspended in public
interest.
 Archiving Electronic/Digital Signature Certificates
-A Certifying Authority shall archive the following documents:
(a) application for issue of Electronic/Digital Signature Certificates;
(b) registration and verification documents of generated Electronic/ Digital Signature
Certificates;
(c) Electronic/Digital Signature Certificates;
(d) notices of Suspension;
(e) information of suspended Electronic/Digital Signature Certificates;
(f) information of revoked Electronic/Digital Signature Certificates;
(g) expired Electronic/Digital Signature Certificates, for a minimum period of seven years or
for a period in accordance with legal requirement
 Revocation of Electronic/Digital Signature Certificates
-A CA can revoke an Electronic/Digital Signature Certificate under the following
Circumstances
• Where the subscriber or any other person authorized by him Makes a request to that effect
• Upon the death of the subscriber
• Upon the dissolution of the firm or winding up of company where the subscriber is a firm or
a company.
 Rules of Compromise and Revocation of Electronic/Digital Signature
Certificates
The Electronic/Digital Signature Certificate shall be revoked and become invalid for
any trusted use, where—
(a) there is a compromise of the Electronic/Digital Signature Certificate owner’s private
key;
(b) there is a misuse of the Electronic/Digital Signature Certificate;
(c) there 1s a misrepresentation or errors in the Electronic/Digital Signature Certificate;
(d) the Electronic/Digital Signature Certificate is no longer required. And the
Electronic/Digital Signature Certificate shall be added to the Certificate Revocation
List (CRL).
 The Rules of Confidential Information and Access to Confidential
Information
The following information shall be confidential —
(a) Electronic/Digital Signature Certificates application whether approved or rejected;
(b) Electronic/Digital Signature Certificate information collected from the subscriber or
elsewhere as part of the registration and verification record but not included in the
Electronic/Digital Signature Certificate information;
(c) Subscriber agreement.
-Any access to confidential information by the CAs operational staff shall be on a ‘need-to-
know’ and ‘need-to-use’ basis and the paper based records, documentation and back-up data
containing all confidential information as prescribed in Rule 33 shall be kept in secure and
locked container or filing system, separately from all other records

 Duties of Subscribers under the Law
• Generating Key Pair
-A subscriber shall generate the key pair by applying the security procedure where any
Electronic/Digital Signature Certificate of which the public key corresponds signature
certificate & has been accepted by the subscriber.
-IT Act, 2000 provides the duties of the subscribers which are contained from Sections 40 to
42 of the said Act.
-A ‘Subscriber’ means a person in whose name the Electronic/Digital Signature Certificate is
issued. The law requires that the subscriber Shall have a pair of keys that is one private key
and the other public key. It 1s a duty of the subscriber to have control over the private key
corresponding to the public key which is listed in his Electronic/Digital Signature Certificate.
- It is expected of the subscriber to keep the identity of his Electronic/Digital Signature secret.
It is also expected that the subscriber should use Electronic/Digital Signature himself and
should not reveal the Electronic/Digital Signature to others. It is duty of the subscriber to
inform the CA without any delay in case his private key has been compromised in any
manner.
 The Concept of Acceptance of Electronic/Digital Certificate by the Subscriber
Under the law a subscriber shall be deemed to have accepted an Electronic/ Digital
Signature Certificate if he publishes or authorizes the publication of a
Electronic/Digital Signature Certificate either to one or more Persons or in a
repository or otherwise demonstrates his approval of the Electronic/Digital Signature
Certificate in any manner.
- And by accepting an Electronic/Digital Signature certificate certifies to all who
reasonably rely on the information contained Subscriber
Digital Signature Certificate that -
(a) the subscriber holds the private key corresponding to the public key listed in the
Electronic/Digital Signature certificate and is Entitled to hold the same.
(b) all representations made by the subscriber to the Certificate and all material
relevant to the information contained in Electronic/Digital Signature are true;
(c) all information in the Electronic/Digital Signature Certificate that is within the
knowledge of the subscriber is true.
 The Importance of the Control of Private Key by the Subscriber
-For the removal of doubts, it is here by declared that the subscriber shall be liable till he has
informed the CA that the private key has been compromised
 Conclusion
-Privacy and data security have been important concerns and issues particularly since the
computer age began. In fact privacy and security did not originate with the computer; rather
paper records and files can also be subject to threat of personal privacy and it can be very
much possible to reveal confidential and sensitive information from the paper records.
Therefore, most of the commercial organizations and individuals kept their critical files
under lock and key giving a limited access to only few trusted people.
- It is through this process of encryption that the subscriber can exercise reasonable control in
order to retain control of the private key which has a corresponding public key in his
electronic/digital signature certificate which assures protection, secrecy and prevents
disclosure to unauthorized person. Thus, the process enables the subscriber to control his
private key.

 Protection of Intellectual Property Rights in Cyberspace in India
• The Cyberspace
- Web-based technology through the Internet has increased our capacity to access it easily
with rapid speed which is very useful for e-commerce and having quick electronic business
transactions. Information stored in electronic form is cheaper, easy to store, retrieve, and
speedier to communicate. The advantages of the Internet have naturally attracted many
business people to conduct the business through e-commerce.
- The efficiency and speed brought by this technology has made it as matchless alternative in
electronic commerce
- 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 & creations on which society provides the status of property.
And the protection of the intellectual property right systems include a range of laws,
institutions and arrangements.

- However, recently international regimes for the protections of intellectual property have been
brought under the umbrella of World Intellectual Property Organization (WIPO) on the one
hand and the World Trade Organization (WTO) on the other hand.
- These international regimes, for the protection of intellectual property, attempt to strike a
balance between the interest of the intellectual property owner and its interests of the
intellectual property users by ensuring the owners of intellectual property adequate return on
their investment in knowledge and increasing social benefits from unrestricted access to
knowledge to the intellectual property users.
- This aspect can be clearly pointed out by the agreement on TRIPs in the WTO. The TRIPs
agreement imposes minimum standards on patents, copyright, trademarks and the trade
secrets. And these standards which are applicable to all WTO members are based almost,
entirely on intellectual property legislation in the industrialized countries particularly the US.

 The Relevance of Domain Names in Intellectual Property Rights
-In the new e-commerce economy it is important that before doing any sort of business
activity a company must be easily traceable on the Internet. This means that the company
must have an address in the cyberspace. This requires the company must have registration
under a particular domain name and a website of its own.
-The Domain Name System (DNS) has made it possible for the registration of a company
which enables a company to conduct online transactions and make it easily traceable by the
customers, suppliers and other users. As it is difficult to remember all-numeric addresses
which each computer, public server has its own unique all-numeric IP addresses and therefore
domain name has a major role to play in the development of the DNS and the emergence of
domain names as important corporate assets.
-The growth of e-business organizations or companies have to cater to new markets for which
the Internet is to play an important role. As a consequence, it is important for a company to
secure an appropriate domain name. For this, the domain name and the protection of the
company’s right to use it are the aspects which every organization or company has to face.

- The domain names serve a number of useful purposes and will rapidly grow to
form the fulcrum of a company’s visibility and marketing operations. Once
there is domain name of the company it will soon be remembered only through
its web address rather than its geographical or telephonic addresses and
numbers.
- The representation of the company’s both name and address on the Internet can
serve as a typical trademark function of showing a company’s recognition and
goodwill in the market place. Therefore, domain name is relevant as the
consumers often see them as performing in e-commerce, the same role as trade
marks and trade names have played in the traditional modes of business.
- Various types of domain name disputes have come for consideration before the
serious kinds of disputes has been the courts all over the world.

 Deception by Squatting in Cyberspace
- The consumers when looking to find the name of the brand on the Internet, the
easiest way for them is to type a domain name of the brand or the company.
Generally, in India, a domain name has at least two key parts. The second level
domain describes like .Com or .Gov and third level domain contains familiar
name that describes product, service or topic that the website addresses. The
popularity of Internet in advertising, recruiting and for market place for
products and services by the companies on the Internet have the interest and
desire to have domain names which are easy to remember and they relate to the
product trade names or trademarks such as www.rediff.com.
-

• Trademarks and domain names being similar, have been exploited by some people
who register trademarks of others as domain names and sell those domain names
back to the trademark owners or third parties at a high profit. This is known as
‘cybersquatting’ which means some person sitting on the property of another person.
Such a trend of cybersquatting has led the courts to consider the relationship between
trademarks and domain names in Intermatic Inc. v. Toeppen, wherein a US court
found that the offer to sell a domain name in the US was ‘use in commerce’ and
therefore it amounts to a trademark’s use. And the court held that such an offer to sell
a domain name to the owner of an identical or similar trademark was a trademark
infringement. The practice of cyber Squatting is abusive whereby one entity register
a domain name that includes name or trademark of others.
• In this connection the most significant case decided by the Delhi High Court is
Yahoo! Inc. v. Akash Arora & Anr’. In this case the Internet search engine Yahoo!
Inc. sued an Internet pirate who had not only copied the domain name
Yahooindia.com but had also used Yahooindia as, a trademark on its website and was
offering directory services with information specific to India.

• In this connection it may be pointed out that the Internet Corporation of
Assigned Names and Numbers (ICANN) has adopted a policy called Uniform
Domain Name Dispute Resolution Policy (UDRP) which offers an expedited
administrative proceedings for trademark holders to contest abusive
registrations of domain names’ which provides cancellation, suspension or
transfer of a domain name by the registrar. The advantages of the ICA are its
quick resolutions of disputes and relatively low costs.
 Bad Faith in Relation to Domain Name Infringement
-In order to establish 'bad faith' in the proceedings for infringement of a domain name
a complainant has to establish the following points in order to obtain relief:
• Respondent's domain name is identical or confusingly similar to a trademark or
service mark in which the complainant has rights.
• Respondents has no right or legitimate interest in respect of the domain name.
• Respondent's domain name has been registered and is being used in bad faith.
- other factors to determine bad faith:
• Registering the domain name with the primary aim of subsequently selling it
at a profit
• Registering the domain name primarily for disrupting the business Of the
competitor
• Registering the domain name in order to prevent the owner of the trade mark
from reflecting the mark in a corresponding domain name
• Using the domain name to attract Internet users to one's website by creating a
likelihood of confusion with the complainant's trademark

 Some Leading Cases Involving Complaints from India before WIPO
-A number of cases have been filed before the World Intellectual Property Organisation
(WIPO) where the complainants have been well known Indian corporate houses or media
companies.
-In Tata Sons Ltd. v. The Advanced Information Technology Association, it was decided by
the WIPO Administrative Panel, Instructing Network Solutions Inc. to transfer the impugned
domain name tata.org to the complainant Tata Sons Ltd. The administrative panelist relied on
the decisions that had been earlier given in favour of Tata Sons Ltd. by the Indian courts
providing protection to the Tata trademark from abusive registrations. In this case the panel
held that the respondent had not even activated its website was itself indicative of bad faith.
- Similarly in tridenthotels.com case the complainant was Oberoi Hotels which owned the
trademarks ‘Trident’ and ‘Trident Hotels’ in India. In this case the panel held that the-use of
the word ‘Trident’ in combination with the word hotels has a certain distinctive character as it
indicates a chain hotels such as the complainants group. The domain name tridenthotels.com
signifies that the domain name was intended to be used for a chain of hotels. It was held by
the administrative panel that this was indicative of the bad faith on the part of the respondent.

 Protection of Copyright on Cyberspace
-The new technology which is multi-functional IT or the Internet poses number of challenges
for laws to protect copyrights. Copyright being an intellectual property gives rights to the
authors in literary, artistic, dramatic and musical works.
- As in other intellectual property rights available under the copyright are essentially negative
in nature, similarly these are basically the rights to stop others from doing certain things as
for example, right to stop piracy, counterfeit, copying or imitations.
- The copyright even enables the holder to stop even the third parties who might
independently reach the same idea from exploiting them without the permission of the
copyright owner. It means that the copyright holder has a right to control the activities of
others.
- Therefore, copyright is rightly called as ‘bundle of rights’ such as right to reproduce work
in copies, right to make an adaptation of the copyrighted work, right to perform or display
the work in public etc. However, it may be pointed out that copyright does not exist in an
idea but is available only when it is in some form or expression
- In India ‘copyright’ means the exclusive right subject to the provisions of the law to do or
authorize the doing of act in respect of work or any substantial part of work.

(a) In the case of literary, dramatic or musical work not being a computer programme to
reproduce the work in any material form including the storing of it in any medium by
electronic means, to 1ssue Copies, to perform the work in the public, to make any
cinematograph film, or sound recording, to make any translation or to make any adaptation,
(b) In the case of computer programme to—
(i) do any of the acts specified in clause(a); and
(ii) sell or give on commercial rental or offer for sale or for commercial rental any copy of the
computer programme. Provided that such commercial rental does not apply 1n respect of
computer programmes where the programme itself is not the essential object of the rental. In
relation to computer programmes ‘literary work’ includes computer programmes, tables and
compilations including computer databases and an ‘author’ means in relation to a literary
work or dramatic work the author of the work, in relation to a musical work, the composer,
and in relation to any literary, dramatic, musical or artistic work which is computer generated,
the person who cause, the work to be created

-The Indian law about copyright is based on Article 10 of the TRIPs Agreement which deals with computer
programmes and stipulates that computer programmes shall be treated as literary works under Berne
Convention. There are various kinds of software based on their availability on the Internet and can be classified
as follows:
• Commercial software
• Freeware
• Shareware
• Copy lifting software
- Though there are different kinds of software as mentioned above, the law relating to protection of copyright
doesn’t make any distinction among any of these software’s.
- Under the law in India all kinds of software have been given similar protection for the purposes of copyright.
Computer software that is sold for a price is called commercial software. It may be pointed out that it is only
with respect to commercial software a large scale computer piracy is done.
- This aspect of piracy of commercial software is the basic concern of the copyright law. In the case of
computer freeware, the software is fully available on the Internet free of cost. And therefore, the user of such
software has not to pay any thing to the author and if the user wishes he may appreciate the work of the
author and acknowledge the benefit he derived from the use of the author’s work
- . A shareware is a software that is distributed openly and widely for users to try before they buy that
programme
 Rights of Software Copyright Owners
-under Section 14 of the Copyright Act, 1957. the copyrights particularly of the software
copyright owners.
• First the author of the software has the right to reproduce and make any number of copies of
his work as he likes.
• Secondly the software copyright owner may display his software on the Internet which
would amount to display to the public which right is provided under section 14(d) of the
Copyright Act and if a defendant by making available copyrighted product online will be
liable, for violation of the right of public display and distribution of the copyrighted work in
violation of author’s copyright
• Owner of the copyright software enjoys exclusive rights to distribute copies of the work to
the Public by Sale or by transfer od ownership or by rental.this right to distribute in india
flaws from Section 14 of the Copyright act 1957.
• Right to adaptation of his work by updating ,changing and modifying his software
copyright

- In India, some of the acts which do not constitute the infringement of copyright are as follows:
(a) a fair dealing with a literary, dramatic, musical or artistic work (not being a computer programme)
for the purpose of
(i) private use, including in research,
(ii) criticism or review.
(aa) The making of the copies or adaptation of a computer programme by the lawful possessor of a
copy of such computer programme from such copy—
(i) in order to utilize the computer programme for the purpose for which it was supplied; or
(ii) to make back-up copies purely as a temporary protection against loss, destruction or damage in
order only to utilize the computer program for the purpose for which it was supplied. ...
(ac) The observation, study or test of functioning of the computer programme in order to determine
the ideas and principles which underline any elements of the programme while performing such acts
necessary for the functions for which the computer programme was supplied.
(ad) The making of copies or adaptation of the computer programme from a personally legally
obtained copy for non-commercial personal use.

 Infringement Of Copyright On Cyberspace
- Under the law, copyright in a work shall be deemed to be infringed—
(a) When any person, without a license granted by the owner of the copyright or the Registrar of
Copyrights under this Act, or in contravention of the conditions of a license so granted or of any
condition imposed by a competent authority under this Act— |
(i) does anything, the exclusive right to do which is by this Act conferred upon the owner of the
copyright;
(ii) permits for profit any place to be used for the communication of the work to the public where
such communication constitutes an infringement of copyright in the work, unless he was not aware
and had no reasonable ground for believing that such communication to the public would be an
infringement of copyright; or
(b) when any person—
(i) makes for sale or hire, or sells or lets for hire, or by way of trade displays or offers for sale or hire;
or
(ii) distributes either for the purpose of trade or to such an extent as to affect prejudicially the owner
of the copyright; or
(iii) by way of trade exhibits in public; or
(iv) Imports into India
- There is no definition of infringement provided under the Copyright Act 1957. However,
Section 2(m) gives the meaning to the words ‘infringing copy’ is in relation to—
• literary, dramatic, musical or artistic work, a reproduction thereof otherwise than in the
form of a cinematographic film;
• a cinematographic film, a copy of the film made on any medium by any means;
• a sound recording, any other recording embodying the same sound recording, made by any
means;
• a programme of performance in which such a broadcast, reproduction right or a
performer’s right subsists under the provisions of this Act, the sound recording or a
cinematographic film of such programme or performance

-following test to determine infringement of a copyrighted work:
There can be no copyright in an idea, subject-matter, themes, plots or historical or legendary
facts and violation of the copyright if access is confined to the form, manner and arrangement,
and expression of the idea by the author of the copyrighted work.
(2in order to have action against the infringed copy, the copying must be a substantial and
material one which at once leads to the conclusion that the defendant is guilty of an act of
piracy.
(3) surest and safest test to determine whether or not there has been a violation of copyright is
to see if the reader ,spectator or viewer after having read or seen both the work is clearly of the
opinion & get unmistakable impression that subsequent work appears to be copy of the
original

 Cyberspace, the Internet, Websites and the Nature of the Copyright
-The copyright on the website the underlying source code or computer programme is
protectable as literary work
-A website creator must ensure that he owns the copyrights in all the aspects involved in the
creation of website for its functioning. In law it is presumed that anything created by an
employee during the course of employment belongs to the employer.
- For the users who want to download a file or software programme it is important to read
instructions and the copyright notices attached with the files. The author may permit the
user to download but may not permit distribution for posting on the internet through some
other website.
- For the owner of a website to have effective control over his material on the website, it is
important that he expressly prohibits any downloading of such materials, because in
downloading the materials from the website there is always a threat of it being used for
various commercial purposes like transmitting and Sale of such material to other users.

 Linking, Hyper-Linking and Framing
-on the commercial Internet the sight owners have contended that before employing a
link, the website must seek permission from the website to which it wants to link.
Some of the website owners have challenged the practice of linking without first
seeking permission.
- Ticketmaster sued Microsoft for linking an Sight without permission. Ticketmaster
objected to Microsoft’s practice of linking deep within its site rather than to the home
page and claimed inter alia that Microsoft unfairly diverted advertising dollars that
otherwise would nave gone to Ticketmaster.
- A framing site, by virtue of certain commands in its HTML code, links to another
site, displaying that site within a window or frame. The frame itself is comprised of
content from the framing site. In comparison to generic hyper linking, in the case of
framing, the user remains at the framing site and views content form both sites.
- The address that the user’s browser displays may continue to be that of the framing
site. The user may be unaware that the content in the frame comes from another site.
The difference between linking and framing may make trademark liability more
likely for sites that frame rather than merely hyperlink.
 Remedies for Infringement of Copyright on Cyberspace
-Under the Copyright Act, 1957, for the infringement of the copyrighted works without a license
granted by the owner of the copyright or the Registrar we find that there are three types of remedies
available to the owner of the Copyrighted work viz.,
(i) Civil remedies
(ii) Administrative remedies
(iii) Criminal remedies under the law.
The civil remedies under the law may be classified further in two categories
(a) preventive civil remedies, and
(b) (b) compensatory remedies:
- Under the Copyright Act, 1957 preventive civil remedies may include interlocutory injunction and
the final injunction in the suite for infringement of copyright. Injunction is the most important remedy
against the infringement of copyright under the law. Injunction means a judicial process by which one
who is threatening to invade or has invaded the legal or equitable rights of another is restrained from
commencing or continuing such act, or is commanded to restore matters to the position in which they
stood previous to the action. Injunction may be interlocutory granted before trial of a suite or
permanently granted after the trial.
• The Liabilities of an Internet Services Provider (ISP) in Cyberspace
-The liabilities of ISPs may arise in a variety of legal areas, such as criminal law' Torts law,
Trade secret law, Copyright law, Trademark law, Unfair competition law and the like. Many
countries have tried to define the liability of ISPs in disseminating third party content, The
function of service providers is to host content, such as web pages of subscriber, over which
the service provider exercises no control.
-And it is impossible practically to monitor or screen the activities of users of network
services. Therefore, service providers need legal protection similar to that as given under the
law to common carriers, such as telephone companies, for infringements ‘committed by their
consumers.

-Such a view is consistent with the Agreed Statements Concerning the WIPO Copyright
Treaty which states that the mere provision of physical facilities for enabling or making a
communication does not by itself amount to a communication.
- As it is impossible to monitor the activities of users of network services, for example,
educational institutions, libraries and museums and service providers, they should have no
legal obligations to monitor what is transmitted, or seek facts or circumstances indicating
illegal activity.
- The Copyright Forum’s recommendation in this regard is based on Article 15(1) of the
European Union’s Directive on Electronic Commerce. The European Union’s approach is
preferred over that of the US which is viewed as being too complex.

• Cyberspace and the Protection of Patents in India
-The owner of a patent is granted certain exclusive rights to a particular invention. The rights
of patent owner include the right to make, the . right to use, and the right to sell the invention
and also the obvious extensions connected with the rights of inventions.
- One of the objects of the patent granted to the owner is to enable the inventor to make better
profits from his efforts. The patent serves to protect the inventor from the unhealthy
competition from the copycats.
- - In the computer technology which is fast-paced, being the first to develop and to patent an
invention which satisfies the demand in a market can Provide significant leverage over
competitors.
- The patent owners can also have an agreement to let others make use of the patented
invention. This is generally done by means of a license agreement which specifies what the
licensee may do me the invention in exchange for a royalty paid to the licensor patent holder.

-The term 'patent' refers to a grant of some privilege, property or authority made by the
government or the sovereign of the country to one or more individuals. The instrument by
which such a grant is made by the government is known as patent. A patent is a form of
intellectual property rights in, among other things, a new and useful device, design or process.
In India, under the law
- a patent is a—
• right granted by the government;
• to exclude others;
• from engaging in activities such as making, using, importing, offering to sell or selling an
invention.

- In India, the law relating to patents came on the Statute Book as The Patents Act, 1970.
Patent, under the Act, is granted by the Controller to the inventor for a period of twenty
years. It is exclusive right to make use, exercise and vend his invention. The Patents
(Amendment Act) 2005, defines: 'patent means a patent for any invention granted under this
Act' 42.
- The Patent's Act grants to the inventor substantive rights and secures to him the valuable
monetary right which he can enforce for his own advantage either by using it himself or
conveying the privileges to others. He receives something tangible, something which has
present existing value, which protects him from some competition, and is the source of gain
and profit.
- After the expiry of the period for which exclusive right is granted to the inventor, invention
can be put to use by any person other than one to whom a patent had been granted. The
person to whom a patent is granted is called patentee.

 Patent as a Form of Intellectual Property
- An invention is the creation of intellect applied to capital and labour, to produce something
new and useful. Such creation becomes the exclusive property Of the inventor on the grant
of patent. The patentee's exclusive proprietary right over the invention is an intellectual
property right. The owner's of the 'patent', that is the, patentee is entitled to deal with his
such property in the same manner as owner of any movable property deals with his
property.
- This means that the patentee can sell the whole or part of his property (patent). He can also
grant license to other(s). Such sale and license of assignment of patented property naturally
has to be for valuable consideration, mutually.
- In Bishwanath Prasad Radhey Shyam v. Hindustan Metal Industries43, the Supreme court
has held that "the object of patent law is to encourage scientific research, new technology
and industrial progress. Grant of exclusive privilege 117 to own, use or sell the method or
the product patented for a limited period, stimulates new inventions of commercial utility.

- The price of the grant of the monopoly is the disclosure of the invention at the Patent Office,
which after expiry of the fixed period of the monopoly passes into the public domain".
- In order to be patentable, an invention must be a new product or process, useful and
capable of industrial application. Secondly, for an invention to be granted patent it should
involve technical advance as compared to the existing knowledge or have economic
significance or both. Thirdly, the invention must be non-obvious to a person possessed of
average skill in the art. What is obvious to a person skilled in the art cannot be patented.
- Novelty or newness in an invention is dependent upon the state of point of art, that is, the
existing knowledge and similar inventions already known in the particular field.

- The invention, besides being new and non-obvious, must also be useful. An invention
which is new and also non-obvious but which cannot be put to any beneficial use of the
mankind cannot be patented.
- However, not so useful intentions are protected in some countries as 'utility models'. But
that concept is not statutorily recognized in India. Further, an invention in order to be
patented, must also be 'non-obvious'.
- This means that to be patentable an invention must be more than a trivial modification of
previously existing inventions. This is usually expressed by saying that an intention is
obvious if it differs from that prior one in such a way that, the invention as a whole would
have been obvious to a person skilled in the relevant art at the time the invention was
created.
- The copyright protection generally does not protect the owner of the Copyright from
independent creation or reverse engineering. In other words, in order to prove a copyright
violation, the copyright owner must prove that the alleged infringer had access to and
copied the copyrighted material

-A piece of software patented cannot be reverse-engineered and sold by another company,
because patent rights prevent anyone other than the patent holder from exercising the patent
holder's exclusive rights without authorization
- In determining the infringement of a patent the principle of 'full coverage is infringement'
and the 'doctrines of equivalents' are applied.
- If the accused infringing the product and the patent is only a replacement of an equivalent
then it is considered that there is an infringement of the patent. The conditions for applying
the 'doctrine of equivalents' are as follows:
• The technology of the accused product and that of plaintiff's claims are substantially
similar in the purpose, function and effect.
• The replacement would be easily thought of by ordinary technicians in the same field of
technology without creative intellectual work

-some kinds of works which need proper protection under the law:
• A multimedia work which is a collection of various other forms of work such as audio, video, text
and so on, is not protected as a class of its own under the copyright. In future such kind of works will
be the kind of norm rather than the exception. Such works may be protected by giving expended
meaning to the term compilation under the Copyright Act.
• With the digitization of works available on such open networks as Internet has raised many legal
issues. In viewing of such works on the Internet multiple temporary copies are made and it is
arguable whether there is infringement of such works on the Internet. Therefore, some new rights
like digital transmission right may be needed to deal with new methods of digital communication.
• Whereas the rights of the authors on the Internet are important to be protected from the infringement
of their copyrighted works the users should be allowed to have a fair use of such works.
• Electronic network is becoming an international market place and the use of the domain names by
the companies has become very important and significant. As so far there is no international regime
in this area, the traditional trademarks law in our country may be amended so that due protection be
given to the trademark owner for use of domain names.
• misuse of cyberspace on the Internet called Spamming. What spamming means is an e-mail that is
both unsolicited and commercial in nature.The process of spamming involves sending bulk e-mails
where the cost is minimal. Spammers generally use 'stealthing' and 'spoofing' to disguise the origin
of their messages.

Cyber Law Unit 2 by Prof.L N. Yadav

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Cyber Law Unit 2 by Prof.L N. Yadav

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Shri Sai College of Engineering & Technology, Bhadrawati

Department of Computer Science & Engineering DBAT University , Lonere

3rd year Semester VI

Subject Name : Cyber Law

Prepared by : Prof. Lovelesh Yadav

By Prof. Lowlesh N. Yadav , HOD , CSE Dept , SSCET , Bhadrawati

By Prof. Lowlesh N. Yadav , HOD , CSE Dept , SSCET , Bhadrawati

-Paragraph 1(a) of UNCITRAL Guide to Enactment establishes the principle that in an

-In the US the legal recognition of electronic signature—

By Prof. Lowlesh N. Yadav , HOD , CSE Dept , SSCET , Bhadrawati

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