LEGAL CHALLENGES OF

DIGITAL MILLENIUM

A.Ram Kumar
Advocate
High Court of Andhra Pradesh
Intellectual Property Rights & Information Technology
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 Challenges of Cyber space

• Relationship between law and tech has always

been uneasy
• Law had been slow and lethargic to respond to new
technologies
• Till recently the law makers handled problems
presented by technology with out break down of
legal resources
• Convergence of computers and internet posed a
much more grave problem
• Legal policy makers find it difficult to address.
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 Borderless environment

• Cyberspace is borderless environment

• Invisibility of net users facilitates anonymity and
pseudonymity
• Intangible nature of the information
• All the above make it extremely difficult to apply
traditional legal concepts to cyberspace activity.
• Even in absence of specific legislation the common
law was being depended upon

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 American Influence

• Internet basically product of US

• Issues relating to cyberspace greatly influenced by
US constitutional and legal issues
• Indian law is basically of British Origin and most of
the laws are very archaic
• Indian law makers need to evolve new laws.
Emphasis laid under the IT Act to make the Act
applicable to offences committed outside India
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 Identification – Major Problem

• A person can express his views in anonymity

• Anonymity and pseudonymity causes problems of
identification
• Identification of offender is essential for imposing
liability
• Identification some times involves technology –
forensic or DNA
• Establishing offence becomes a major exercise-
nexus between equipment and offender
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 Exercise of Jurisdiction

• Borderless nature of the cyberspace

challengers.
• Traditionally jurisdiction is linked with
territory
• Court to decide if it has personal jurisdiction
over the parties.
• Whether general jurisdiction or extra
territorial jurisdiction
• Different views expressed by courts on the
jurisdictional matter
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 US Supreme Court
• Intl Shoe Co Vs Washinton
• “Ordinarily a non resident defendant may not be sued in
the forum unless it is first established that the defendant
has sufficient minimum contacts with the forum and the
maintenance of the suit does not offend traditional
notions of fair play and substantial justice”.
• If this test was met the court could exercise its
jurisdiction
• The convention on Jurisdiction and Foreign Judgments
in Civil and Commercial matters being negotiated under
the auspices of The Hague Conference on Private Intl
Law seeks to address the issue of multiplicity of
Jurisdiction
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 Copy right issues
• Copyright law turned upside down
• Traditional legal doctrines on CR rendered out of
date
• 3 indelible way by which information is used and
exploited:
– Digitisation of information made reproduction easy
– Networking has made distribution easy
– WWW made publication easy
• Three developments contributed for costs to be
shrunk to unimaginable level
• Economics of information value is affected
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 Virtual property
• Virtual property is new kind of property spawned by the
net
• This virtual property capable of generating astonishing
wealth
• Information can be archived, compared, manipulated
and distributed at astonishing ease
• Data bases have acquired new value
• TM Rights and Domain names have new virtual property
in form of Cyber marks.
• Domain names runs the cyberspace and because of the
globalization and commercialization of net DN are
business identifiers
• Indian law has made a good head way in recognizing DN
as IP
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 Knowledge Economy -
criminalisation
• Knowledge is third factor of production after capital
and labour
• Knowledge is used to create and exploit
• Crucial part in generating wealth
• Knowledge capitalism is the new trend of business
economy
• But in the race to achieve this law was left behind
• The pace of development of tech gave rise to on line
offenders and criminal
• Speed at which offence is committed is incredible
• Pace at which the crime is detected and solved is slow
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 New legal challenges
• The legal system as to be re engineered in so far as
digital and cyberspace offences are concerned
• Evidence gathering and law relating to evidenced to
undergo substantial change
• Searching and seizing of evidence calls for special
expertise
• Legal fraternity has to familiarise itself with advanced
evidence techniques like Forensic science, digital foot
printing etc
• Legal questions should be settled fast even with
judicial intervention
• The entire legal structure for Digital offences to be set
up
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 Beginning made
• Courts have started with computerization,digitization and
Networking - at lower level
• Hosting of day to day judgments
• Virtual conferencing in criminal matters
• Enterprise Resource Planning and CRM packages to help
CJ’s to keep track of progress of litigation and disposals
• Posting of cause lists, judgments, references to acts etc
• By enacting IT Act, 2002, India has signaled to the world
that our country is ready to take up challenges.
• Establishing Cyber Crime police stations to deal with
digital offences
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 Thank you
• Questions please

www.iprconsultants.com
ramkumarashok@gmail.com