1.

1 Introduction to the Concept of IT and IP

Intellectual property (IP) law deals with creativity and innovation. Over the years, IP law has
developed an increasingly profound link with both technological developments and the rules
governing them. IP law is constantly challenged by new waves of technologies since it is
often called to provide protection for them. At the same time, new technologies offer new
ways to exploit protected works. Besides, the more technology has become an autonomous
subject matter governed by specific provisions, the more IP law has engaged in a constant
dialogue with these provisions. This interaction between IP law and technology has
significantly affected the contours of the field.

It is probably not an exaggeration to say that intellectual property (IP) is the legal field that
has had one of the longest and most interesting relationships with technological advancement.
Just think, for example, of how the modern understanding of copyright emerged. It was when
it became necessary to regulate the making and selling of copies of books, something that –
since the 1400s – had become increasingly easier and cheaper further to … the invention of
the printing press! Or, to give another example, think of patent law; this field of IP is
specifically concerned with protecting inventions, that is the result of human and
technological advancement.

Copyright and technology

Besides the advent of the printing press, throughout history several technological innovations
have raised questions under copyright law.

For example, when photography was invented, it suddenly became easier to portray images
of daily life than when paintings and engravings were the main means to capture persons,
landscapes, and events. But should photographs be protected at the same conditions as other
works? In 1884, the US Supreme Court answered ‘yes’ in a famous case relating to a
photograph of Oscar Wilde, and ruled that photographs are art that can be protected in the
same way as “maps, charts, designs, engravings, etchings, cuts, and other prints”.

Patents and technology

Patent law has technology in its DNA. But did you know that patents have not always been
deemed appropriate to protect technological innovation? Take software as an example.
Among other things, the European Patent Convention provides that “programs for computer”
are not to be considered inventions for the purpose of patent protection. This means that
protection is not available under patent law, though a computer program may be protected by
copyright.

An example in this sense is the smartphone that you might be using right now to read this
article: it is a device that is covered by hundreds of patents relating to the chips, the memory,
sensors, receivers, transmitters and batteries inside; it is also covered by patents for the
several processes, instructions and operations it carries out, which are all facilitated by
software.

The latest technological advancements

Naturally, the most recent technological innovations have also been raising new issues for IP
law and IP professionals alike. Finally, new technologies like blockchain and NFTs have
been proving useful to both owners and users of IP to have access to information relating to,
for example, the IP status and ownership of an object and, especially when blockchain and
NFTs are used in the art world, its authenticity.

An unavoidable and ever-growing relationship

Since its very inception, IP has been concerned with and affected by technological
advancement. Similarly, the way people execute their tasks has constantly changed and
mostly improved by the introduction of new technologies. On both fronts, things are not
going to change going forward. The task of IP law will be thus that of continuing to react to
and regulate the use of such technologies.

Before going into the merits of the interface between IP and IT law, it is necessary to briefly
identify the relationship between these two areas of research. The boundaries of IP law are
generally known and defined. The same cannot be said, at least until a few years ago, for IT
law. Therefore, the contours of IT law need to be identified to understand its relationship with
IP law, and in turn to explore research questions at the intersection between the two fields of
law.

Information technology refers to “combination of software and hardware products and

services that people use to manage, access, communicate, and share information.”  With the
aim to regulate various facets of information technology, the Indian Information Technology
Act, 2000 defines ‘information’ to include “data, message, text, images, sound, voice, codes,
computer program, software and data bases or micro film or computer generated micro
fiche.”
The revolution in information technology has made not only the information accessible but
made life easier by innovation in information technology. And software is considered to be as
fasted growing industry in information technology. Every new advancement and
development in software industry is changing the nature of software and thus, having huge
impact on almost all sectors of industries.

The Boundaries Between Information Technology Law and Intellectual Property Law

The common understanding of IT law is that it is the set of rules applying to the internet and
regulating human behaviour in the cyberspace. Generally speaking, research about the
intersection of law and technology is considered to have emerged as a discipline in the 1960s.
However, only in the 1990s, along with the expansion of the internet, did the term ‘cyberlaw’
gain strong popularity, followed by similar expressions such as ‘IT law’ and ‘Computer law’.
Since then, legal scholars have continuously pursued the goal of defining and analysing IT
law but have struggled to find consensus on the definitions of cyberspace and cyberlaw.3

Many legislative initiatives have been undertaken in the field of intellectual property rights.
These initiatives, however, often seem to be concentrated on information technology itself
rather than on the social problems that may have arisen from it.

In the second half of the 1990s, the debate became very lively. Some fought against the idea
of IT law as a separate field of study because of the assumption that there was no reason to
teach the ‘law of cyberspace’ any more than there was reason to teach the ‘law of the
horse’.4 However, others claimed IT law was a separate, specific field of study, necessary to
tackle the unique features of the internet that put into question the traditional areas of
law.5 The applicability of current laws was also highly questioned—from patent and
copyright law to the new borderless, hyperconnected, and ever-changing environment
brought about by the third major technological revolution that was the internet. According to
the incremental and evolutionary theory, IT law could be slowly absorbed into traditional
areas of law (such as IP law, telecom law, privacy/data protection, international private law)
to the point of disappearing as a separate field. Following the revolutionary approach,
cyberspace instead would be so unique that it would become impossible for traditional fields
to adjust and regulate it sufficiently, thus, an interdisciplinary new sector would develop
under the guidance of cyberspace experts.
Equally lively was the debate between technological determinists and cyberlibertarians on the
one hand, and cyberpaternalists and network communitarists on the other hand. The former
group claimed that internet freedom was hardwired into its technological infrastructure and
any attempt at regulation was doomed to fail, while the latter argued that cyberspace could
(and should) be regulated by the law, social norms, the market, and code architecture.12

1.2 The Effect of Technological Changes on Law

Technological Revolution have been witnessed in almost every professional field across the
globe. The use of Big Data has been the force of the this change or revolution to be accurate.
The scope of technology is multiplying day by day. With each passing day, humans are
coming up with newer methods to use technology to benefit them and to make their life easy.
Technology is giving rise to many new things like e-payment, e-shopping, e-courts, e-filings,
e-classrooms, virtual offices, blockchain, cloud computing, and much more . The compilation
of data to set up a specific pattern to provide outcomes which are purely data specific, not
affected by any irrelevant external factors like human error have been of great use to
calculate better decisions and steps in order to solve issues/problems.

Modern technology is continuously reshaping industries nowadays. As beneficial as

implementing new tech can be, it’s always quite disruptive to do so at first. Every industry
needs time to properly adapt to new technologies before they actually become an asset. A
perfect example of this scenario is the law industry. The fact of the matter is that no industry
can avoid the changes imposed by new tech.The legal sector is now faced with new processes
and modernized workflows as a result of a digital transformation.

IMPLICATION OF TECHNOLOGY IN LEGAL SECTOR AND ITS IMPACT :

The legal sector is now faced with new processes and modernized workflows as a result of a
digital transformation. Changes in legal education system by introducing Online data bases
were the initial steps for change which made it very efficient for law aspirants as well as
professionals to work effectively and provide results on time with minimum errors. Cases,
Acts, Precedents all are available online with just one click into the data base. Varied
opinions of law professionals can also be accessed through E-Journals of reputed universities
and are available to the public at large which leaves scope for legal knowledge and
assessment of policies, acts & laws in a better way. Artificial Intelligence (AI) too has been a
futuristic approach adopted by organizations in various fields. A self-learning software which
uses data to arrive at on outcome with behavior like humans.

AI has been useful to many organizations to calculate their next step or assess their decision.
The field of law involves establishing a strategy on the basis of facts, evidences (data) to
calculate the next step (outcome). The use of big data and Artificial intelligence will make
this more efficient, streamlined and effective.Within a span of a decade from 2004 to 2014
the global scenario was reshaped and revamped with technology.

Technology came in rescue to mobilize the desk oriented, pen-pushing working style of law
practice. Legal practitioners need not be glued to libraries, record offices, telephones or
copiers to work on their cases. With the help of advanced computing, storage systems,
internet, search engine tools, smartphones, tablets, kindles, there emerged a migration from
conventional desktop working mechanism to mobile operations.

Prior to the techie era, the simplest research work for a case may be time consuming which
involved manual inquiries in person, library visits, record references, calls, meetings and
consumed several days to achieve the required result. The situation in the court halls were
more intricate, time-consuming lengthy process. This is one amongst the major setbacks in
the litigating system and a branch of root cause for piling pendency of cases.

As the technology evolved, the legal field across the countries quickly switched and adopted
it into their practices to link worldwide to stay state-of-art in currency with modern times and
remain tuned to the latest information. The work which took laborious days together to
accomplish in earlier era is completed within hours now in the modern world.

1.3 Technological challenges to law, property and ethics

We are currently living in the so-called information age which can be described as an era
where economic activities are mainly information based (an age of informationalization).
This is due to the development and use of technology. The main characteristics of this era can
be summarized as a rise in the number of knowledge workers, a world that has become more
open - in the sense of communication (global village/Gutenberg galaxy) and
internationalization (trans-border flow of data).

This paradigm shift brings new ethical and juridical problems which are mainly related to
issues such as the right of access to information, the right of privacy which is threatened by
the emphasis on the free flow of information, and the protection of the economic interest of
the owners of intellectual property.

ETHICS

The ethical actions of a person can be described in general terms as those actions which are
performed within the criterium of what is regarded as good. It relates thus to the question of
what is good or bad in terms of human actions.

 Definition of Privacy

Privacy can be defined as an individual condition of life characterized by exclusion from

publicity. The concept follows from the right to be left alone. As such privacy could be
regarded as a natural right which provides the foundation for the legal right.

THE INFLUENCE OF TECHNOLOGY ON THE PROCESSING OF PERSONAL

AND PRIVATE INFORMATION

4.1 The Ethical Implications for the Use of Technology in the Processing of Information

Although technology has a major impact on the gathering, storage, retrieval and
dissemination of information its main ethical impact relates to accessibility/inaccessibility
and the manipulation of information. It creates the possibility of wider as well as
simultaneous access to information. By implication, it becomes easier to access a person's
private information by more people. On the other hand, a person can be excluded from
necessary information in electronic format by means of a variety of security measures such as
passwords.
The technological manipulation of information refers, among others, to the integration of
information (merging of documents), the repackaging thereof (translations and the integration
of textual and graphical formats) and the possible altering of information (changing of
photographic images) by electronic means.

Privacy is an important right because it is a necessary condition for other rights such as
freedom and personal autonomy. There is thus a relationship between privacy, freedom and
human dignity. Respecting a person's privacy is to acknowledge such a person's right to
freedom and to recognize that individual as an autonomous human being.

The duty to respect a person's privacy is furthermore a prima facie duty. In other words, it is
not an absolute duty that does not allow for exceptions. A government also has the right to
gather private and personal information from its citizens with the aim of ensuring order and
harmony in society. The right to privacy (as an expression of individual freedom) is thus
confined by social responsibility.

HOW TECHNOLOGY IS THREAT TO OUR PRIVACY

Violation in the name of security: talk to any educated man regarding privacy; you‟re likely
to hear genuine concern regarding massive data breaches, wearable tech, social networking,
targeted advertising miscues and so and so on. Technology has offered sweeping capabilities
to the scientists and military experts to create to monitor people and places for security
reasons. In almost all the countries there are no clear cut laws to maintain transparency and
accountability in respect of monitoring persons and places in the form of online and offline
monitoring.

Artificial intelligence: it involves mainly data mining, intelligent combining of various

databases and sources, to be used for predictive purposes such as „profiling‟, pattern
assessment, speech recognition, image analysis, robotics, social machines and the like. For
instance in case of social machine a computer interacts with human to talk on an issue or
business concern etc. machine has an advantage that humans perceive it as credible, unbiased
and have intention to reveal safely. But we forget that machine can make us emotional but
not affected by our emotions, it does not get tired and it records every bit of our activity,
thus affect our privacy.
Internet Surveillance: involves monitoring of human activity on the net in terms of
detecting contents, pattern and frequency for supposed purposes like- target advertisement,
marketing, safety, tracking anti social elements like pedophiles, security, anti terrorism
operations and the like. It can detect content of personal mails, private surfing, and
personal security measures like password etc. Scholars fear that it discourages people
even to exchange intellectual content as may be the case with researchers, scientists, artists
and the like. Fear of being watched causes people to act and think differently from the way
they might otherwise, which cause huge loss of psychic energy and damage the mental peace.

Surveillance of places: (cameras, listening devices) popularly known as digital spying is done
for the reason of detecting movement of criminals, suspicions persons, analyze the images
after the untoward incident may be an attack, an accident a theft, vandalism, riots, robbery,
terrorist attack and the like. This digital spying intrudes the personal life when it
continuously pictures an employee in an office, teacher in an institution and a couple in a
hotel and the like. preventing human rights violation like genocide, populicide, invasion,
large scale environmental damage, nuclear explosion or test, early missile warning and the
like.

Surveillance of persons (including GPS and radio frequency ID): used for constant location
tracking of a person. There can be in the form of RFID tag (Radio frequency identification
device), for identification as well as tracking. Some critics have expressed fears that people
will soon be tracked and scanned everywhere they go. This makes person public and violates
not only right to privacy but right to movement as well. For celebrities and important persons
this has become the easiest way to trap for several bad reasons. They find it very disturbing
when news reporters, fans, under world people can spot them wherever they go. Politicians
also feel that they have no private life due to cell phones.

Biometrics: it involves various methods of establishing identity. These include- body

scanning, facial recognition software, fingerprint scanning, face thermo gram, gait
recognition, hand geometry measurement, iris scanning, retinal scanning, voice printing,
DNA identification, DNA profiles, brain Scanning, poly graph, metal detector etc. Let us
take the case of full body scan it affects ones human right as it intrudes one‟s
privacy by affecting bodily integrity, showing images of the naked body is considered
highly intrusive by everyone, and even more so by female, some religious groups, disabled
and transgender persons.

Identity theft: as there is so much information provided other things can be guessed such as
financial status etc. Cases are common when users have stolen photographs from social
networking sites in order to assist in identity theft. They can create a fake identity on your
name and misuse to send friends request, illicit material and the like. There is little evidence
that users of social networking sites are taking full measures to protect themselves from
identity theft. Hacking of celebrities account on Twitter, Instagram, pinterest etc., is a quite
common event. Companies involved in marketing, advertisement, fashion, idea business
purchase huge identity date from social networking sites for contacting potential
customers, it is being done without permission of the user.

Technology is fascinating, powerful, and precise, but there are reasons to be cautious.
Technology is not, and never will be, a panacea for resolving all the safety and security
issues. Satellite imagery is not always a complete truth, it shows villages are burnt, but who
burnt is not certain, it is need to be ascertained by man giving due respect to other‟s rights
including right to privacy. We are still at initial stage of understanding the power of
technology for rights movement. The potential is enormous, no doubt, but it is vital that
activists should adapt „no harm‟ approach, characterized by rigorous, judicious and
transparent use of modern technology. If there is doubt as to its safety, reliability or the
ethical implications of its use, rather it should not be used

ANALYSIS OF TECHNOLOGY: THEORIES

Instrumental theory

Generally speaking, instrumental theories (or perspectives) tend to treat technology as a

neutral tool without examining its broader social, cultural and political impacts. The
instrumentalists are often identified with strains of thought that respect human autonomy in
matters of technology, in part because technology itself is perceived to be neutral in its
impact on human affairs, and in part because of the emphasis upon human willpower to
decide whether to adopt technologies.
The instrumental theory of technology portrays technology as neutral and computers as
neutral tools. Andrew Feenberg describes the instrumental theory as one that: offers the most
widely accepted view of technology. It is based on the common sense idea that technologies
are tools' standing ready to serve the purposes of their users. Technology is deemed 'neutral',
without valuative content of its own.

Technology is a "rational entity," without bias or prejudice, and universally applicable, thus
allowing similar standards of measure to be applied in various situations. Due to these
propositions, the only response is unreserved commitment to the employment of technology.
Exceptions may be made on moral grounds, but people must also understand that the "price
for the achievement of environmental, ethical, or religious goals...is reduced efficiency".

The instrumental position is successful, in part, by creating an artificial divide between

technology and its human users, consumers, marketers, and designers. This allows humans to
see themselves separate from technology, and vice versa, so that we are thought distanced
from the complexity of our societal involvement.

The fundamental law of the instrumental theory of technology is that you cannot optimize
two variables. There is a price for the achievement of environmental, ethical, or religious
goals, and that price must be paid in reduced efficiency. If technology is a mere
instrumentality, indifferent to values, then its design is not at issue in political debate, only
the range and efficiency of its implementation. However, if technology is the vehicle for a
culture of domination, then we are condemned to return to a more archaic way of life. In
neither case can we change it: technology is destiny. Reason, in its technological form, is
beyond human intervention or restoration. The instrumental theory of technology is not
conducive to successful democratic and equitable functioning in society.

The Substantive Theory of Technology

In contrast, substantive theories emphasize the ways in which technological systems (or
'structure') can have a substantive impact on individual and community interests that may
differ from their intended impact: substantive theorists sometimes emphasize how
technological structure can overcome human willpower.
In contrast to the instrumental theory is the substantive theory of technology. Best known
through Ellul and Heidegger, the substantive theory, according to Feenberg. "argues that
technology constitutes a new type of cultural system that restructures the entire social world
as an object of control" (1991). In this view, the computer as a technology is seen as the
culmination of a variety of cultural/ ideological forces, which, depending on the context in
which the technology is used or discussed, can be either positive or negative.

Consider cell phones. They were initially developed to enable remote wireless
communication. But most cell phones today have embedded GPS chips that give off
information concerning the cell user's geographic location (this information is often stored in
permanent digital format by telephone companies). Police sometimes tap into this
information as part of their investigation into alleged criminal/terrorist activities. In other
words, we started out with a communication device but now carry around a state-tracking
device.

Heidegger claims that we are engaged in the transformation of the world and ourselves into
"standing reserves," raw materials waiting to be used up in the process.

The issue is not that machines have "taken over, but that in choosing to use them we make
many unwitting cultural choices. Technology is not simply a means but has become an
environment and a way of life: this is its substantive impact.

The substantive theory of technology aims for society's awareness of its cultural character.
The point is not that technology has taken over, but rather that we are making ignorant
cultural choices such as allowing technology to control us when we implement technology in
our lives. In viewing technology in terms of its substantive impact, technology is no longer a
means of accomplishing certain tasks; it has become a world in itself and a way of life.

Society has become technological; we are in an era of incessant change and development in
terms of technology and its effects on society. The manner in which technology has and
continues to transform society is such an important substantive change that it is disingenuous
to claim technology merely renders the means more efficient. Efficiency, in other words, does
more than just streamline our ways of getting the things we always wanted; it changes those
things. Efficiency changes our social environment; it changes the goals we pursue; it changes
the whole content of our action.
Technology thinkers are sometimes broken down into two groups: instrumental and
substantive theorists).

How can these theories or perspectives influence legal analysis?

Instrumentalists, like Alfred E. Neuman, would tend to say, 'What, me worry?' After all, an
instrumentalist might maintain, individuals can choose to carry a cell phone (or not), and
hence there is no real policy problem.

A substantive theorist, on the other hand, might worry that our societies are now filled with
these tracking devices, potentially leading to a variety of state abuses (for example, a
government could develop software to scan through vast telco databases to track the
movements of individuals despite no evidence of individual wrong-doing). While it is true
that individuals can choose not to carry a cell phone, the costs of doing so may be prohibitive
(for example, a workplace may require a cell phone) or a cultural norm may encourage cell
phone usage (ask any teenager).