The Consumer Protection Act, 1986

Introduction

The earlier principle of “Caveat Emptor” or “let the buyer beware” which was prevalent has given way to the principle of “consumer is king”. The origins of this principle lie in the fact that in today’s mass production economy, where there is little contact between the producer and consumer, often sellers make exaggerated claims through advertisements, which they do not intend to fulfill. This leaves the consumer in a difficult position with very few opportunities for redressal. The need to recognize and enforce the rights of consumers is being understood and several laws have been made for this purpose. In India, we have the Indian Contract Act, the Sales of Goods Act, the Dangerous Drugs Act, the agricultural Produce (Grading and Marketing) Act, Prevention of Food Adulteration Act, the Standards of Weights and Measures Act, the Trade and Merchandise Marks Act, etc, which to some extent protect consumer interests. However, these laws require the consumer to initiate action by way of a civil suit, which involves lengthy legal process proving to be too expensive and time consuming for lay consumers. Therefore, the need for a simpler and quicker redressal to consumer grievances was felt and accordingly, it led to the legislation of the Consumer Protection Act, 1986.

2. Extend and Coverage of the Act

The salient features of the act are summed up as under:-

The act applies to all goods and services unless specifically exempted by the Central Government.

It covers all the sectors whether private, public or cooperatives. The provisions of the Act are compensatory in nature.

3. Object of the Consumer Protection Act, 1986

The main objectives of the Act are:

i. To provide better protection to consumers. Unlike existing laws, which are punitive or preventive in nature?

ii. The Act is intended to provide simple, speedy and inexpensive redressal to consumer’s grievances, and award compensation wherever appropriate to the consumer.

iii. The Act has been amended in 1993 and in 1999 both to extend its coverage and scope and to enhance the powers of redressal machinery.

iv. To promote voluntary consumer movements and to safeguard the interests of consumers.

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4. Rights of Consumers

The basic rights of consumers as per the Consumer Protection Act are;

i. The right to be protected against marketing of goods and services which are hazardous to life and property.

ii. The right to be informed about the quality, quantity, potency, purity, standard and price of goods or services at competitive prices.

iii. The right to be heard and be assured that consumers’ interest will receive due consideration at appropriate forums.

iv. The right to seek redressal against unfair trade practices or restrictive trade practices or unscrupulous exploitations of consumers, and

v. The right to be assured wherever possible, access to variety of goods and services at competitive prices.

vi. The right to consumer education.

The act envisages establishment of Consumer Protection Councils at the Central and State levels, whose main objects will b to promote and protect the rights of the consumers. The CPA extends to the whole of India expect the State of Jammu and Kashmir and applies to all the goods and services unless and otherwise notified by the Central Government.

5. Definitions of Important Terms

Before studying the provisions of the CPA, it is necessary to understand the terms used in the Act. Let us understand some of the more important definitions.

a. Complaint Means

A consumer; or

Any voluntary consumer association registered under the Companies Act, 1956 or under any other law for the time being in force; or

The central government or state government, who or which makes a complaint against the suppliers of goods or services.

b. Goods mean goods as defined in the Sale of Goods Act, 1930. Under that act, goods means every kind of movable property other than actionable claims and money and

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includes stocks and shares, growing crops, grass and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale.

c. Service is defined to mean that a service of any description which is made available to potential users and includes the provisions of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or purveying of news or other information but does not include the rendering of any service free of charge or under a contract of personal service.

d. Consumer dispute means dispute where the person against whom a complaint has been made, denies or disputes the allegation contained in the complaint.

e. Restrictive Trade Practice means any trade practices which requires a consumer to buy, hire, or avail of any goods or as the case may be, services as a condition precedent for buying, hiring or availing of any other goods or services.

f. Unfair Trade Practice means unfair trade practice as defined under the Monopolies and Restrictive Trade Practices Act. The MRTP Act has defined certain practices to be Unfair Trade Practices. The detailed definition is given in the Consumer Protection Act, 1986 as amended by the Consumer Protection (Amendment) Act. 1993. It means a trade practice which, for the purpose of promoting sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice including any of the following practices namely:-

i. False or misleading representation,

ii. Bargain price

iii. Offering of gifts, prize, contest etc.

iv. Non compliance of product safety standard.

v. Hoarding or destruction of goods.

g. Defect means any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force or under any contract, express or implied, or as is claimed by the trade in any manner whatsoever in relation to any goods.

h. Deficiency means any fault, imperfection or shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.

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6. Who is a Consumer?

All of us are consumers of goods and services. For the purpose of the Consumer Protection act, the word “Consumer” has been defined separately for ‘goods” and “services”. For the purpose of “goods”, a consumer means a person belonging to the following categories:

i. One who buys or agrees to buy any good for a consideration which has been paid or promised or partly paid and partly promised or under any system of deferred payment;

ii. It includes any user of such goods other than the person who actually buys goods and such use is made with the approval of the purchaser.

A person not a consumer if he purchases goods for commercial or resale purposes. However, the word “commercial” does not include use by a consumer of goods bought and used by him exclusively for the purpose of earning his livelihood by means of self employment.

For the purpose of “services”, a “consumer” means a person belonging to the following categories:

One who hires or avails of any service or services for a consideration which has been paid or promised or partly paid and partly promised or under any system of deferred payment. It includes any beneficiary of such service other than the one who actually hires or avails of the service for a consideration and such services are availed with the approval of such person.

7. Who can file a Complaint?

The following can file a complaint under the Act:-

A consumer

Any voluntary consumer organization registered under the Societies Registration Act, 1860 or under the Companies Act, 1956 or under any other laws for the time being in force.

The Central Government

The State Government or Union Territory Administrations.

One or more consumers on behalf of numerous consumers who are having the same interest.

8. Structure of Consumer Redressal Authority

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To provide simple, speedy and inexpensive redressal of consumer grievances. the Act envisages a three- tier quasi judicial machinery at the National, State and District levels.

1. National Consumer Disputes Redressal Commission known as "National Commission".

2. Consumer Disputes Redressal Commissions at state level known as "Slate Commission".

3. Consumer Disputes Redressal Forums at District level known as "District Forum".

9. What Constitutes a Complaint?

Under the Act, a complaint means any allegation in writing made by a complainant in regard to one or more of the following:-

Any unfair trade practice as defined in the Act or restrictive trade practices like tie-up sales adopted by any trader.

One or more defects in goods. Goods hazardous to life and safety, when used, are being offered for sale to public in contravention of provisions of any law for the time being in force.

Deficiencies in services. A trader charging in excess of price

(i) Fixed by or under any law for the time being in force; or(ii) Displayed on goods; or(iii)Displayed on any packet containing such goods

10. Consumer Protection Councils

The interests of consumers are ensured through various authorities set up under the Consumer Protection Act. The CPA provides for the setting up of the Central Consumer Protection Council, the State consumer Protection Council and the District Forum.

i. Central Consumer Protection Council:

The Central Government has to set up the Central Consumer Protection ' Council which consists of the following members:-

(a) The Minister in charge of Consumer Affairs in the Central Government who is its Chairman, and

(b) Other official non-official members representing varied interests. The Central Council consists of 150 members and its term is 3years. The Council meets as and when necessary but at least one meeting is held in a year.

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ii.State Consumer Protections Council

The Stale Council consists of:-

(a) The Minister in charge of Consumer Affairs in the State Government who Chairman, and

(b) Other official and non-official members representing varied interests. The State Council meets as and when necessary, but not less than two meetings must be held every year.

9. Redressal Machinery under the Act

The Consumer Protection Act provides for a 3 tier approach in resolving consumer disputes. The District Forum has jurisdiction to entertain complaints where the value of goods / services complained against and the compensation claimed is less than Rs. 5 lakhs, the State Commission for claims exceeding Rs. 5 lakhs but not exceeding Rs. 20 lakhs and the National Commission for claims exceeding Rs. 20 lakhs.

I. District Forum

Under the Consumer Protection Act, Government has to set up a district Forum in each district of the Slate. The Government may establish more than one District Forum in a district if it deems fit. Each District Forum consists of :-

(a) A person who is, or who has been, or is qualified to be, a District judge who shall be its President

(b) Two other members who shall be persons of ability, integrity and standing and have adequate knowledge or experience or have shown capacity in dealing with problems relating to economics, law. commerce, accountancy, industry, public affairs or administration and one of whom shall be a woman.

Appointments to the State Commission shall be made by the State Government on the recommendation of a Selection Committee consisting of the President of the Stale Committee, the Secretary of Law Department of the State and the Secretary in charge of Consumer Affairs. Every member of the District Forum holds office for 5 years or up to the age of 65 years, whichever is earlier and is not eligible for re-appointment. A member may resign by giving notice in writing to the State Government whereupon the vacancy will be filled up by the State Government.

The District Forum can entertain complaints where the value of goods or services and the compensation, if any, claimed is less than rupees five lakhs. However, in addition to jurisdiction over consumer goods services valued up to Rs. 5 lakhs, the District Forum also may pass orders against traders indulging in unfair trade practices, sale of defective goods or render deficient services provided the turnover of goods or value of services does not exceed rupees five lakhs.

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A complaint shall be instituted in the District Forum within the local limits of whose

(a) The opposite party or the defendant actually and voluntarily resides or carries on business or has a branch office or personally works for gain at the time of institution of the complaint; or

b) Any one of the opposite parties (where there are more than one) actually and voluntarily resides or carries on business or has a branch office or personally works for gain, at the time of institution of the complaint provided that the other opposite party/parties acquiescence in such institution or the permission of the Forum is obtained in respect of such opposite parties; or

(c) The cause of action arises, wholly or in part.

II. State Commission

The Act provides for the establishment of the State Consumer Disputes Redressal Commission by the State Government in the State by notification. Each State Commission shall consist of:-

(a) A person who is or has been a judge of a High Court appointed by State Government (in consultation with the Chief Justice of the High Court) who shall be its President;

(b) Two other members who shall be persons of ability, integrity, and standing and have adequate knowledge or experience of, or have shown capacity in dealing with problems relating to economics, law, commerce, accountancy, industry, public affairs or administration and one of whom must be a woman.

(c) Every appointment made under this Act shall be made by the State Government on the recommendation of a Selection Committee consisting of the President of the State Commission, Secretary - Law Department of the State and Secretary in charge of Consumer Affairs in the State.

Every member of the State Commission holds office for 5 years or unto the age of 65 years, whichever is earlier and is not eligible for re-appointment. A member may resign by giving notice in writing to the State Government whereupon the vacancy will be filled up by the State Government.

The State Commission can entertain complaints where the value of goods or services and the compensation if any claimed exceed Rs. 5 lakhs but does not exceed Rs. 20 lakhs;

The State Commission also has the jurisdiction to entertain appeal against the orders of any District Forum within the State. The State Commission also has the power to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been

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decided by any District Forum within the State if it appears that such District Forum has exercised any power not vested in it by law or has failed to exercise a power rightfully vested in it by law or has acted illegally or with material irregularity.

III. National Commission

The Central Government provides for the establishment of the National Consumer Disputes Redressal Commission. The National Commission shall consist of :-

(a) A person who is or has been a judge of the Supreme Court, to be appoint by the Central Government (in consultation with the Chief Justice of India ) who will be its President;

(b) Four other members who shall be persons of ability, integrity and standing and have adequate knowledge or experience of, or have shown capacity in dealing with, problems relating to economics, law, commerce, accountancy, industry, public affairs or administration and one of whom shall be a woman Appointments shall be by the Central Government on the recommendation of a Selection Committee consisting of a Judge of the Supreme Court to be nominated by the Chief

Justice of India, the Secretary in the Department of Legal Affairs and the Secretary in charge of Consumer Affairs in the Government of India.

Every member of the National Commission shall hold office for a term of five years or up to seventy years of age, whichever is earlier and shall not be eligible for reappointment.

The National Commission shall have jurisdiction:

(a) To entertain complaints where the value of the goods or services and the compensation, if any, claimed exceeds rupees twenty lakhs:

(b) To entertain appeals against the orders of any State Commission; and

(c) To call for the records and pass appropriate orders in any consumer dispute which is pending before, or has been decided by any State Commission where it appears to the National Commission that such Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.

Complaints may be filed with the District Forum by:-

1. A consumer to whom such goods are sold or delivered or agreed to be sold or delivered or such service provided or agreed to be provided

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2. Any recognized consumer association, whether the consumer to whom goods sold or delivered or agreed to be sold or delivered or service provided or agreed to be provided, is a member of such association or not.

3. One or more consumers, where there are numerous consumers having the same interest, with the permission of the District Forum, on behalf of or for the benefit of, all consumers so interested

4. The Central or the State Government. On receipt of a complaint, a copy of the complaint is to be referred to the opposite party, directing him to give his version of the case within 30 days.

This period may be extended by another 15 days. If the opposite party admits the allegations contained in the complaint, the complaint will be decided on the basis of materials on the record. Where the opposite party denies or disputes the allegations or omits or fails to take any action to represent his case within the time provided, the dispute will be settled in the following manner:-

In case of dispute relating to any goods: Where the complaint alleges a defect in the goods which cannot be determined without proper analysis or test of the goods, a sample of the goods shall be obtained from the complainant, sealed and authenticated in the manner prescribed for referring to the appropriate laboratory' for the purpose of any analysis or test whichever may be necessary, so, as to find out whether such goods suffer from any other detects. The appropriate laboratory' would be required to report its finding to the referring authority, i.e. the District Forum or the State Commission within a period forty-five days from the receipt of the reference or within such extended period as may be granted by these agencies.

10. How to File a Complaint

Procedures for filing complaints and seeking redressal are simple. There is no fee for filing a complaint before the District Forum, the State Commission or the National Commission.(A stamp paper is also not required) There should be 3 to 5 copies of the complaint on plain paper.

• The complainant or his authorized agent can present the complaint in person.• The complaint can be sent by post to the appropriate Forum /

Commission.• A complaint should contain the following information

(a) The name, description and the address of the complainant.(b) The name, description and address of the opposite party or parties, as the case

may be, as far as they can be ascertained;(a) The facts relating to the complaint and when and where it arose;(b) Documents, if any, in support of the allegations contained in the complaint.(a) The relief which the complainant is seeking

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The complaint should be signed by the complainant or his Authorized agent. The complaint is to be filed within two years from the date on which cause of action has arisen.11. Relief Available to the Consumers

Depending in the nature of relief sought by the consumer facts, the Redressal Forums may give orders for one or more of the following relief’s:-

(a) Removal of defects from the goods,(b) Replacement he goods;(c) Refund of the price paid;(d) Award of compensate 'on for the loss or injury suffered;(e) Removal of defects or deficiencies in the services;(f) Discontinuance of unfair trade practices or restrictive trade practices.(g) Withdrawal of the hazardous goods from being offered to sale; or(g) Award of adequate costs to parties.

12. Procedure for Filing the Appeal:

Appeal against the decision of a District Forum can file before the State Commission within a period of thirty against the decision of a State Commission can be filed before the National Commission within thirty days. Appeal against orders of the National Commission can be filed before the Supreme Court within a period of thirty days.

i. There is no fee for filing appeal before the State:

Procedure for filing the appeal is the same as that of a complaint, except that the application should be accompanied by the orders of the District/State Commission as the case may and grounds for filing the appeal should be specified in the peal against the decision of District Forum and State Commission the National Commission.

ii.Speedy Disposal

The thrust of the Act is to provide simple, speedy and inexpensive redressal to consumer’s grievances. To ensure a speedy disposal of consumers grievances, the following provisions have been incorporated in the Act and the rules framed there under:-

• It is obligatory on the complainant or appellant or their authorized agents and the opposite parties to appear before the Forum/Commission on the date of hearing or any other date to which hearing could be adjourned.

• The National Commission, State Commission and District Forums are required to decide complaints, as far as possible, within a period of three months from the date of notice received by the opposite party where the complaint does not require analysis or testing of the commodities and within five months if it requires analysis or testing of commodities.

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• The National Commission and State Commissions are required to decide the appeal as far as possible, within 90 days from the first date of hearing.

13. Penalties :-

Where a trader or a person against whom a complaint is made fails or omits to comply with any order made by District Forum, the State Commission or the National Commission, as the case may be, such trader or person shall be punishable with imprisonment for a period which shall not be less than one month but which may extend upto three years or with a fine which shall not be less two thousand rupees but which may extend upto Ten thousand rupees or with both.

Cyber Law

Introduction

Cyber law is a new phenomenon having emerged much after the onset of Internet. Internet grew in a completely unplanned and unregulated manner. Even the inventors of Internet could not have really anticipated the scope and far reaching consequences of cyberspace. The growth rate of cyberspace has been enormous. Internet is growing rapidly and with the population of Internet doubling roughly every 100 days, Cyberspace is becoming the newly preferred environment of the world.

With the spontaneous and almost phenomenal growth of cyberspace, new and ticklish issues relating to various legal aspects of cyberspace began cropping up. In response to the absolutely complex and newly emerging legal issues relating to cyberspace, CYBERLAW or the law of Internet came into being. The growth of Cyberspace has resulted in the development of a new and highly specialized branch of law called CYBERLAWS- LAWS OF THE INTERNET AND THE WORLD WIDE WEB.

2.Definition

There is no single exhaustive definition of the term "Cyber law". However, simply put, Cyber law is a term which refers to all the legal and regulatory aspects of Internet and the World Wide Web. Anything concerned with or related to, or emanating from any legal aspects or issues concerning any activity of citizens and others in Cyberspace comes within the ambit of Cyber law .

3.Need for Cyber laws In India

India became independent on 15th August, 1947. In the 49th year of our independence, Internet was commercially introduced in our country. The beginnings of Internet were extremely small and the growth of subscribers was painfully slow. However as Internet has grown in our country, the need has been felt to enact the relevant Cyber laws which are necessary to regulate the Internet in India. This need for cyber laws was propelled by numerous factors.

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Firstly, India has an extremely detailed and well defined legal system in place. Numerous laws have been enacted and implemented and the foremost amongst them is the constitution of India .We has inter alia, the penal code, the Indian evidence act 1872, the banker’s book evidence act, 1981 and the reserve bank of India act, 1934, the companies act, and so on. However the arrival of internet signaled the beginning of the rise of new and complex legal issues. It may be pertinent to mention that all the existing laws in place in India were enacted way back keeping in mind the relevant political, social, economic, and cultural scenario of that relevant time. Nobody then could really visualize about the internet. Despite the brilliant acumen of our master draftsmen of constitution the requirements of cyberspace laws could hardly ever be anticipated. As such, the coming of the internet led to the emergence of numerous ticklish legal issues and problems which necessitated the enactment of cyber laws.

Secondly, the existing laws of India, even with the most benevolent and liberal interpretation, could not be interpreted in the light of the emerging cyberspace, to include all aspects relating to different activities in cyberspace. In fact practical experience and wisdom of judgment found that it shall not be without major perils and pitfalls, if the existing laws were to be interpreted in the scenario of emerging cyberspace, without enacting new cyber laws. Hence the need for enactment of relevant cyberlaws.

Thirdly, none of the existing laws gave any legal validity or sanction to the activities in cyberspace. For example, the net is used by a large majority of users for e-mail. Yet till today, e-mail is not “legal” in our country. There is no law in the country, which gives legal validity and sanction to e-mail. Courts and judiciary in our country have been reluctant to grant judicial recognition to the legality of e-mail in the absence of any specific law having been enacted by the parliament. As such the need has arisen for cyberlaw.

Fourthly, Internet requires an enabling and supportive legal infrastructure in tune with the times. This legal infrastructure can only be given by an enactment of the relevant. Cyberlaws as the traditional laws have failed to grant the same. E-commerce, the biggest feature of internet, can only be possible if necessary legal sanction validity complements the same to enable its vibrant growth.

All these and other varied considerations created a conducive atmosphere for the need to enact relevant cyberlaws in India. The government of India responded by coming up with a draft of the first cyber law of India – The information technology bill, 1999.

INDIA PASSES ITS FIRST CYBERLAW

The internet is not lawless. Law is always there for the internet; but new questions arise about how that law will be applied and it is not always with same predictability or certainty as is found with more traditional topics. Internet networking is based on information being broken down into smaller pieces, or packets, that are transmitted to its destination by routers and servers, dependent on a type of address system known as the TCP/IP protocol (Transmission Control Protocol/Internet Protocol). To work as network, each user linking to it must have a direct identifier (an IP address) recognizable by the network.

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The internet is a complex and multinational environment where traditional concepts of regulation may not be easily applicable or enforceable. Special problems are created because of the unfamiliar features such as disembodying in time and space of the actor and action, The amount of traffic, and the universality of the traffic.

INFORMATION TECHNOLOGY ACT 2000

The parliament of India as passed its first cyber law, the information technology act, 2000 which not only provides the legal infrastructure for e-commerce in India but also at the same time, gives draconian powers to the police to enter and search, without any warrant, any public place for the purpose of nabbing cyber criminals and preventing cyber crime.

DEFINING CYBER CRIME

Defining cyber crimes, as “acts that are punishable by the Information Technology Act” would be unsuitable as the Indian Penal Code also covers many cyber crimes, such as e-mail spoofing and cyber defamation, sending threatening e-mails etc. A simple definition of cyber crime would be “unlawful acts wherein the computer is either a tool or target or both”.

The word cyber and its relative dot.com are probably the most commonly used terminologies of the modern era. In the information age, the rapid development of computers, telecommunications and other technologies has led to the evolution of new forms of transnational crimes known as “cyber crimes”. Cyber crimes have virtually no boundaries and may affect every country in the world. They may be defined as “any crime with the help of a computer and a telecommunication technology”. With the purpose of influencing the functioning of a computer or the computer systems.

NATURE OF CYBER CRIME The extent of loss involved worldwide of cyber crimes is tremendous as it is estimated that about 500 million people who use the internet can be affected by the emergence of cyber crimes. Cyber crimes are a very serious threat for the times to come and pose one of the most difficult challenges before the law enforcement machinery. Most cyber crimes do not involve violence but rather greed, pride, or play on some characteristic weakness of the victims. It is difficult to identify the culprit, as the Net can be a vicious web of deceit and can be accessed from any part of the globe. For these reasons, cyber crimes are considered as “white-collar crimes”. To understand cyber crime as a significantly new phenomenon, with potentially and profoundly serious consequences, it is necessary to recognize it as a constituent aspect of the wider political, social and economic reconstruction currently affecting countries worldwide. This new technology not only provides opportunities for the profitable development of an international information market but has also raised the specter of new criminal activities to exploit them. The very technology that enables multinationals to do business more effectively and challenge the individual controls and regulations of nation states, also offers the prospect of globally

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organized criminal networks. Moreover the free flow of uncensored information on electronic networks and websites is as attractive to insurgents and extremist groups as it is dissidents proclaiming the human rights. Just as crimes have changed with the growth of information technology so have the categories of criminals who engage in such crimes. There are three basic categories of criminals who engage in such crimes, ranging from hackers, information merchants and mercenaries, to terrorists, extremists and deviants.

TYPES OF CYBER CRIMES

A. Hacking: It is the most common type of cyber crime being committed across the

world. Hacking has been defined in section 66 of the information technology act, 2000 as follows:

“Whoever with the intent to cause or knowing that he is likely to cause wrongful loss or damage to the public or any person destroys or deletes or alters any information residing in a computer resource or diminishes its value or utility or affects it injuriously by any means commits hacking”.

A hacker is a person who breaks in or trespasses a computer system. Hackers are of different types ranging from code hackers to crackers to cyber punks to freaks.

Some hackers just enjoy cracking systems and gaining access to them as in ordinary pastime; they do not desire to commit any further crime. Whether this in itself would constitute a crime is a matter of debate. At most, such a crime could be equated with criminal trespass.

Punishment for hacking under the above mentioned section is imprisonment for three years or fine which may extent up to two lakh rupees or both.

B. Cracking:The term cracking means, ‘Illegal accesses. Now, ‘access’ comprises entering

of the whole or any part of a computer system (hardware components, stored data of the system installed, directories, traffic and content related data). However, it does not include the mere sending of an e-mail message or file to that system. ‘Access’ includes the entering of another computer system, where it is connected via public telecommunication networks or to a computer system on the same network, such as a LAN (Local Area Network) or intranet within an organization. The method of communication (e.g. from a distance, including via wireless links or at a close range) does not matter. So if a virus is sent through an e-mail, it is not an illegal ‘access’ and hence cannot be termed as ‘cracking’.

C. Security Related Crimes:With the growth of the internet, network security has become a major concern.

Private confidential information has become available to the public. Confidential information can reside in two states on the network. It can reside on the physical stored media, such as hard drive or memory or it can reside in the transit across the physical network wire in the form of packets. These two information states provide opportunities for attacks from users on the internal network, as well as users of the internet.

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D. Network Packet Snifters:Network computers communicate serially where large information pieces are

broken in to smaller ones. The information stream would be broken in to smaller pieces even if networks communicate in parallel. These smaller pieces are called network packets. Since these network packets are not encrypted they can be processed and understood by any application that can pick them off the network and process them. A network protocol specifies how packets are identified and labeled which enables a computer to determine whether a packet is intended for it. The specifications for network protocols such as TCP/IP are widely published. A third party can easily interpret the network packets and develop a packet snifter. A packet snifter is a software application that uses a network adapter card in a promiscuous mode (a mode in which the network adapter card sends all packets received by the physical network wire to an application for processing) to capture all network packets that are sent across a local network. A packet snifter can provide its users with meaningful and often sensitive information such as user account names and passwords.

E. Internet Protocol Spoofing:An IP attacks occurs when an attacker outside the network pretends to be a

trusted computer either by using an IP address that is within its range or by using an external IP address that you trust and to which you wish to provide access to specified resources on your network. Normally, an IP spoofing attack is limited to the injection of data or commands in to an existing stream of data passed between client and server application or a peer-to-peer network connection.

F. Password Attacks:Password attacks can be implemented using several methods like the brute

force attacks, Trojan horse programmes. IP spoofing can yield user accounts and passwords. Password attacks usually refer to repeated attempts to identify a user password or account. These repeated attempts are called brute force attacks.

At the core of these security breaches, is the distribution of sensitive information to competitors or others who use it to the owner’s disadvantage. While an outside intruder can use password and IP spoofing attacks to copy information, an internal user could place sensitive information on an external computer or share a drive on the network with other users.

Man -in -the-middle-attacks This attack requires that the attacker has access to network packets that

come across the networks. The possible use of such attack are theft of information, hijacking an ongoing session to gain access to your internal network resources, traffic an

alysis to drive information about one’s own network and its users, denial of service, corruption of transmitted data, and introduction of new information into network sessions.

G. Fraud on the internet: This is a form of white collar crime. Internet fraud is a common type of

crime whose growth has been proportionate to the growth of internet itself. The internet provides companies and individuals with the opportunity of marketing their products on

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the net. It is easy for people with fraudulent intention to make their messages look real and credible. There are innumerable scams and frauds, most of them relating to investment schemes and have been described in detail below:

1. Online investment newsletters

Many newsletters on the internet provide the investors with free advice

recommending stocks where they should invest. Sometimes these recommendations are totally bogus and cause loss to the investors.

2. Bulletin boards

This is a forum for sharing investor information and often fraud is perpetrated in this zone causing loss of millions who bank on them.

3. E-mail scams

Since junk mail ( e-mail which contains useless material ) is easy to create, fraudsters often find it easy to spread bogus investment schemes or spread false information about a company.

4. Credit card fraud

With the electronic commerce rapidly becoming a major force in national economies, it offers rich pickings for criminals prepared to undertake fraudulent activities. In U.S.A. the ten most frequent fraud reports involve undelivered and online services; damaged, defective, misrepresented or undelivered merchandise; auction sales; pyramid schemes and multilevel marketing and of the most predominant among them is credit card fraud. Something like half a billion dollars is lost by consumers in card fraud alone.

5. Publishing of false digital signature

According to section 73 of the I.T. Act 2000, if a person knows that a digital signature certificate is erroneous in certain particulars and still goes ahead and publishes it, he is guilty of having contravened the Act. He is punishable with imprisonment for a term that may extend up to two years or with fine of lakh rupees or with both.

6. Making available digital signature for fraudulent purpose

This is an offence punishable under section 74 of the above mentioned act, with imprisonment act, with imprisonment for a term that may extend up to two years or with fine of two lakh rupees or with both.

7. Alteration and destruction of digital information

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Corruption and destruction of digital information is the single largest menace facing the world of computers. This is introduced by a human agent with the help of various programmes which have been described in detail below:

Virus just as a virus, can infect the human immunity system. There exist programs which can destroy or hamper computer systems. A computer virus is a programme designed to replicate and spread, generally with the victim being oblivious to its existence. Computer viruses spread by attaching themselves to programmes like word processor or spreadsheets or they attach themselves to the boot sector of a disk. When an infected disk, the virus itself is also executed.

8. Pornography on the Net

The growth of technology has a flip side to it causing multiple problems in everyday life. Internet has provided a medium for the facilitation of crimes like pornography. Cyber porn as it is popularly called is widespread. Almost 50% of the web sites exhibit pornographic material on the Internet today. Pornographic materials can be reproduced more quickly and cheaply on new media like hard disks, floppy discs and CD-ROMs. The new technology is not merely an extension of the existing forms like text, photographs and images. Apart from still pictures and images, full motion video clips and complete movies are also available. Another great disadvantage with a media like this is it is easy availability and accessibility to children who can now log on to pornographic websites from their own houses in relative anonymity and the social and legal deterrents associated with the actual purchasing of an adult magazine from the stand no longer present. Furthermore, there are more serious offences which have universal disapproval like child pornography and it is far easier for offenders to hide and propagate through the medium of the internet.

The Information and Technology Act 2000 makes publishing of information which is obscene in electronic form punishable as under:

“Whoever publishes or transmits or causes to be published in the electronic form, any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it, shall be punished on first conviction with imprisonment of either description.for a term may extend to five years and with a fine which may extend to one lakh rupees and in the event of a second or subsequent conviction, with imprisonment of either description for a term which may extent to two lakh rupees.”

Cryptography, private and national security concerns:

The Internet has provided its users with a new forum to express their views and concerns on a worldwide platform. As a necessary corollary to the freedom to communicate and speak is the fact that this must be allowed with as little State interference as possible; in other words, the absence of State intrusion. This immediately raises the controversial issue of the right to privacy. It can be considered a logical corollary to the freedom of speech and expression. At the same time it is common knowledge that liberty cannot thrive without certain restrictions put on them so that each individual in society can

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be best protected. The practice of encryption and its study which is known as cryptography provides individuals with means of communication that no third party can understand unless specifically permitted by the communicators themselves. It would therefore see that this practice is a legitimate utilization of the right to freedom of speech and expression and the right to have a private conversation without intrusion.

Breach of Confidentiality and Privacy

According to section 72 of the Information Technology Act 2000.If a person has secured access to any electronic record, book, register, correspondence, information, documents or other material without the consent of the person concerned and discloses the same to any other person then he shall be punishable with imprisonment up to 2 years, or with a fine which may extent to one lakh rupees, or with both.

Encryption and Cryptography

Encryption is like sending a postal mail to other party with a lock code on the envelop which is known only to the sender and the recipient. This, therefore, has the effect of ensuring total privacy even in open net works like the internet. Encryption involves the secret codes and ciphers to communicate information electronically from one person to another in such a way that the only person so communicating, could know how to use the codes and ciphers. The field of cryptography on the other hand deals with the study of secret codes and ciphers and the innovations that occurs in the field. It is also defined has the art and the science of keeping messages secure. Thus while encryption is the actual process, cryptography involves the study of the same and is of wider connotation.

The Right to Privacy and Encryption

It is usually agreed upon that in most democracies they do exist private and public spheres every citizen’s life and that these two spheres are distance and have to be treated as such. Although the line of distinction is blurred and continues to be the subject of much debate, especially with regard to certain subject such as pornography or the use of narcotics, it is generally agreed that a liberal democratic state has no power to interfere with the with the private aspects of its citizens’ lives. There is a common misconception that the right to privacy is nearly a weapon to ensure confidentiality in human affairs. This however does not present the complete picture. It must be remember that the right to confidentiality arises only after information regarding human transaction or affairs have reached third parties. It may be said that privacy involves the right to control one’s personal information and the ability to determine how that information should be used and obtained. This principle has sometimes been referred to as the right to “informational self-determination”. This principle becomes all the more relevant with the onset of the internet and e-commerce. The volume and the varying nature of the transaction carried out on the net are such that the right to privacy must extend at least to a limited extent. At the same time, the very same factors, volume and the nature of the transactions also raise to issue of the security concerns as to the political, social and economic health of the country. Encryption of the details of our personal transactions would certainly assure as to greater degree of privacy but may also encroach upon the domain of national security concerns and the two ends may be set to be in conflict.

Restrictions on Cryptography in India

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The use of the cryptography and encryption in India is a relatively new phenomenon. The use of this technology for the purpose of communication has begun only over the last 15-20 years in India. According to recent report in India there are very few companies involved in the development of cryptography. Further, cryptography remains within the domain of the defense sector. It is only as late as 1995 that India introduced a list of items that required licensing before export. The list only included encryption software for telemetry system in specific and did not relate to encryption software in general.

The information and Technology Act 2000 seek to introduce some sort of control over the use of encryption for communication in India.

Preventing of Computer Crime

a. By Education Everyone.

For example, users and systems operators; people who hold personal data and the people about whom it is held; peoples who create intellectual property and those who buy it, and the criminals. We must educate peoples to:

1. Understand how technology can be used to help others. 2. Think about what it would be like to be the victim of a computer hacker or computer

pirate.b. By Practicing Safe Computing

1. Always ask: who has or may have access to my log-in address?2. Remember: People such as computer hackers and pirates who hurt others through

computer technology are not “cool”. They are breaking the law.3. The internet is analogous to the high seas. No one owns them, yet people of all

nationalities use them. It would perhaps be ideal if unification of internet laws could be achieved as to minimize the discrepancies in the application of such laws. This is vital considering the growth of commercial activities on the internet. Changes needs to be made to the existing Information and Technology Act 2000 in order to combat the numerous problems caused by the internet.

Intellectual Property Rights

NATURE OF INTELLECTUAL PROPERTY RIGHTS: IPR are largely territorial rights except copyright, which is global in nature in the sense that it is immediately available to all the members of the Berne convention. These rights are awarded by the state and are monopoly rights implying that no one can use these rights without the consent of the right holder. it is important to know that these rights have no be renewed from time to time for keeping them in force except in case of copyright and trade secrets. IPR have fixed term except trademark and geographical indications which can have indefinite life term provided these are renewed after a stipulated time specified in the law by paying the requisite official fees. Trade secrets also have an infinite life term but they don't have to be renewed. IPR can be assigned, gifted, sold and licensed like any other physical property. Unlike other moveable and immoveable properties, these rights can be simultaneously held in many countries at the

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same time. IPR can be held only by the legal entities i.e.; who have the right to sell and purchase property. in other words an institution, which is not autonomous, may not be in a position to own an intellectual property. These rights especially, patents, copyrights, industrial designs, Ic layout design and trade secrets are associated with something new or original and therefore what is known in public domain cannot be protected through the rights mentioned above. Improvements and modifications made over known things can be protected. It would however, be possible to utilize geographical indications for protecting some agriculture and traditional products.

TYPES OF IPRs:

Intellectual property rights are legal rights, which result from intellectual activity in industrial, scientific, literary artistic fields. These rights safeguard creators and other producers of intellectual goods services by granting them certain time-limited rights to control their use. Protected IP rights like other property can be a matter of trade, which can be owned, sold or brought. These are intangible and non exhaustive consumption.

1. Patents.2. Trademarks.3. Copyrights and related rights.4. Geographical indications.5. Industrial designs.6. Trade secrets.7. Layout design for integrated circuits.8. Protection of new pant variety.

1. PATENT A patent is an exclusives right granted for an invention, which is a product or a

process that provides a new way of doing something, or offers a new technical solution to a problem. It provides protection for the invention to the owner of the patent. The protection is granted for a limited period, i.e. 20 years. Patent protection means that the invention cannot be commercially made, used, distributed or sold without the patent owner's consent. A patent owner has the right to decide who may -or may not-use the patented invention for the period in which the invention is protected. The patent owner may give permission to, or license, other parties to use the invention on mutually agreed terms. The owner may also sell the rights to the invention to someone else, who will then become the new owner of the patent. Once a patent expires the protection ends, and the invention enters the public domain, that is , the owner no longer holds exclusive rights to the invention, which becomes available to commercial exploitation by others.

All patent owners are obliged, in return for patent protection, to publicly disclose information of their invention in order to enrich the total body of technical knowledge in the world. Such an ever-increasing body of public knowledge promotes further creativity and innovation in others. In this way, patents provide not only protection for the owner but valuable information and inspiration for future generations of researches and inventors.

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PATENT RIGHTS

A patent is an exclusive right granted by a country to the owner of an invention to make, use, manufacture and market his invention, provided the invention satisfies certain conditions stipulated in the law. Exclusive right implies that no one else can make, use, manufacture or market the invention without the consent of the patent holder. This right is available for a limited period of time. In spite of the ownership of the rights, the use or exploitation of the rights by the owner of the patent may not be possible due to other laws of the country which has awarded the patent. These laws may relate to health, safety, food, security etc. Further, existing patents in similar area may also come in the way. A patent in law is a property right and hence, can be gifted, inherited, assigned, sold or licensed. As the right is conferred by the state, it can be revoked by the state under very special circumstances even if the patent has been sold or licensed or manufactured or marketed in the meantime. The patent right is territorial in nature and inventors/their assignees will have to file separate patent applications in countries of their interest ,along with necessary fees, for obtaining patents in those countries . A new chemical process or a drug molecule or an electronic circuit or a new surgical instruments or a vaccine is a patentable subject matter provided all the stipulations of the law are satisfied.

THE INDIAN PATENT ACT:

The first Indian patent laws act were promulgated in 1856. These were modified from time to time. New patent laws were made after the independence in the form of Indian patent act 1970.The act has now been radically amended to become fully complaint with provision of TRIPS. The most recent amendment was made in 2005 which was preceded by amendments in 2000 and 2003. While the process of bringing out the amendments was going on, India became a member of the Paris convention, patent cooperation Treaty and Budapest Treaty. The salient and important features of the amended Act are explained here.

DEFINITION OF INVENTION:

A clear definition has now been provided for an invention, which makes it at par with the definitions followed by most other countries. Invention means a new product or process involving an inventive step and capable of industrial application. New invention means any invention or technology which has not been anticipated by publication in any document or used in the country elsewhere in the world before the data of filing of patent application with complete specification i.e., the subject matter has not fallen in public domain or it does not form part of the state of the art.

Inventive step means a feature of an invention that involves technical advancement as compared to the existing knowledge or having economic significant or both and that makes the invention not obvious to a person skilled in the art. “Capable of industrial application means that the invention is capable of being made or used in an industry”.

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NOVELTY

An invention will be considered novel if it does not form a part of the global state of the art. Information appearing in magazines, technical journals, books, newspapers etc. Constitute the state of the art. Oral description of the invention in a seminar/conference can also spoil novelty. Novelty is assessed in global context. An invention will cease to be novel if it has been disclosed in public through any type of publications anywhere in the world before filing a patent application in respect of the invention. Therefore it is advisable to file a patent application before publishing a paper if there is a slight chance in the country of invention may be patentable. Prior use of the invention in the country of interest before the filing date can also destroy the novelty.

Novelty is determined through extensive literature and patent searches. It should be realized that patent search is essential and critical for ascertaining novelty as most of the information reported in patent documents do not be a major breakthrough. No invention is small or big. Modification to an existing state of the art, process or product or both, can also be candidates for patent provided these were not earlier known. In a chemical process, for example, use of new reactants, use of catalyst, new process condition can lead to patentable invention.

INVENTIVENESS (NON-OBVIOUSNESS)

A patent application involves an inventive step if the proposed invention is not obvious to a person skilled in the art i.e., skilled in the subject matter of the patent application. The prior at should not point towards the invention implying that the practitioner of the subject matter could not have thought about the invention prior to filing of the patent application. Inventiveness cannot be decided on the material contained in unpublished patents. The complexity or the simplicity of an inventive step does not have any bearing on the grant of a patent. In other words a very simple invention cans quality for patent. If there is an inventive step between the proposed patent and the prior art at the point of time, then an invention has taken place. A mere ‘scintilla’ of invention is sufficient to found a valid patent. It may be often difficult to establish the inventiveness especially in the area of up coming knowledge areas. The reason is that it would depend a great deal on the interpretative skills of the inventor and these skills will really be a function of knowledge in the subject area.

Usefulness

An invention must possess utility for the grant of patent. No valid patent can be granted for an invention devoid of utility. The patent specification should spell out the various uses and the manner of practicing them, even if considered obvious. If you are claiming a process, you need not describe the use of the compound produced thereby. Nevertheless it would be safer to do so. But if you claim a compound without spelling out its utility, you may be denied a patent.

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Non patentable inventions

An invention may satisfy the conditions of novelty, inventiveness and usefulness but it may not quality for a patent under the following situations:

(i) An invention which is frivolous or which claims anything obviously contrary to well established natural laws e.g. different types of perpetual motion machines.

(ii) An invention whose intended use or exploitation would be contrary to public order or morality or which causes serious prejudice to human, animal or plant life or health or to the environment e.g., a process for making brown sugar will not be patented.

(iii) The mere discovery of a scientific principal or formulation of an abstract theory. E.g., Raman Effect and theory of relativity cannot be patented.

(iv) The mere discovery of a new forma of a known substance which does not result in enhancement of the known efficacy of that substance or the more discovery of any new property or new machine or apparatus unless such a known process result in a new product or employs at least one new reactant. For the purpose of this clause, salts esters, polymorphs, metabolites, pure from, particular size, isomers, mixtures of isomers, complexes, combinations and other derivatives of known substance shall be considered to be the same substance unless they differ significantly in properties with regard to efficiency.

(v) A substance obtained by a mere admixture resulting only in aggregation of the properties of the component thereof or a process for producing such a substance.

(vi) The mere arrangement or rearrangement or duplicate of features of known devices each functioning independently of one another in a known way. If you put torch bulbs around and umbrella and operate them by a battery so that people could see you walking in rain when it is dark, then this arrangement is patentable as bulbs and the umbrella perform their functions independently.

(vii) A method of agriculture or horticulture. For example, the method of terrace farming cannot be patented.

(viii) Any process for medical, surgical, curative, prophylactic, diagnostic, therapeutic or other treatment of human beings or any process for a similar treatment of animal to render them free of disease or to increase economic value or that of their products. For example, a new surgical technique for hand surgery for removing contraction is not patentable.

(ix) Inventions relating to atomic energy;(x) Discovery of any living thing or non-living substance occurring in nature.(xi) Mathematical or business methods or a computer program per se or algorithms.(xii) Plants and animals in whole or any part thereof other than microorganism but

including seeds, verities and species and essentially biological process for production and propagation of plants and animals;

(xiii) A presentation of information.(xiv) Topography of integrated circuits.(xv) A mere scheme or rule or method of performing mental act or method of playing

games.

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(xvi) A invention which, in effect, is traditional knowledge or which is aggregation or duplication of known component or components.

A computer program per se as such has not been defined in the act but would generally tend to mean that a computer program without any utility would not be patentable. Protection of seeds and new plant varieties is covered under a different act, which provides a protection for a period of 10 years. Similarly topography of integrated circuits is protect through yet a different act

TERM OF THE PATENT:

Term of a patent will be 20 years from the date of filing for all types of invention

APPLICATION:

In respect of patent applications filed, following aspects will have to be kept in mind.

Claim or claims can now relate to single invention or group of invention linked so as to single inventive concepts.

Patent application will be published 18 months after the date of filing. Applicant has to request for examination 12 months within publication or 48 months

from date of application whichever is later. no person receding in India shall, except under the authority of a return permit sought in the manner prescribed and granted by or on behalf of the controller, make or cause to be made any applicant outside India for the grant of a patent for an invention unless (a) an applicant for a patent for the same invention has been made in India, not less than six weeks before the application outside India; and (b) either no direction has been given under the secrecy clause of the act or all such direction have been revoked.

PROVISIONAL SPECIFICATION:

A provisional specification is usually filled to establish priority of the invention in case the disclose invention is only at the conceptual stage and a delay is expected in submitting full and specific description of the invention. Although, a patent application accompanied with provisional specification does not confer any legal patent rights to the applicant, it is, however, a very important document to establish the earliest ownership of an invention. The provisional specification is a permanent and the independent scientific cum legal document and now amendment is allowed in this. No patent is granted of bases of a provisional specification. It has to be followed by a complete specification for obtaining a patent for the said invention. Complete specification must be submitted within 1 months of filing the provisional specification. This period can be extent by three months. It is not necessary to file an

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application with provisional specification before the complete specification. An application with complete specification can be filed right at the first instance itself.

2. Trademarks:

A trademark is a distinctive sign that identifies certain goods or services those produced or provided by a specific person or an enterprise. It may be one or combination of words, letters, and numerals. They may consists of drawings , symbols, three-dimensional signals such as the shape and packaging of goods, audible signs such as music or vocal sounds, fragrances, or colours used as distinguishing features. It provides protection to the owner of the mark by ensuring the exclusive right to use it to identify the goods or services, or to authorize another to use it in return for payment.

It helps consumers identify and purchase a product or service because its nature and quality, indicated by its unique trademark, meets their needs. Registration of trademark is prima facie proof of its ownership giving statutory right to the proprietor. Trademark rights may be held in perpetuity. The initial term of registration is for 10 years; thereafter it may be renewed from time to time.

Trademarks A trademark is a distinctive sign, which identifies certain goods and services as

those produced or provided by a specific person or enterprise. Trademarks may be one or combination of words, letters, and numerals. They may also consist of drawings, symbols, three dimensional signs such as shape and packaging of goods, or colours used as distinguishing feature. Collective marks are owned by the association whose members use them to identify them with a level of quality. Certification marks are given for compliance with defined standards. (Example ISO 9000). A trademark provides to the owner of the mark the exclusive right to use it to identify goods or services, or to authorize others to use it in return for some consideration (payment).

Well- known trademark in relation to any goods and services, means a mark which has become so popular to a substantial segment of the public which uses such goods or receives such services that the use of such mark in relation to other goods or services would be likely to be taken as indicating a connection in the course of trade or rendering of services between those goods or services and the person using the mark in relation to the first- mentioned goods or services.

Enactment of the Indian Trademarks Act 1999 is a big step forward from the Trade and Merchandise Marks Act 1958 and the Trademark Act 1940. The newly enacted Act has some features not present in the 1958 Act and these are :-

1. Registration of service mark, collective marks and certification trademarks.2. Increasing the period of registration and renewal from 7 years to 10 years.3. Allowing filling of single application in registration in more than one class. 4. Enhanced punishment of offences related to trademarks. 5. Exhaustive definitions for terms frequently used.6. Simplified procedure for registration of registered users and enlarged scope of

permitted use.

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7. Constitution of an Appellate Board for speedy disposal of appeals and rectification applications which at present lie before High Court.

Well-known trademarks and associated trademarkA well-known trademark in relation to any goods or services means a mark which

has become known to a substantial segment of the public that uses such goods or receives such services. Associated Trademarks are, in commercial terms, marks the resemble each other and are owned by the same owner, but are applied to the same type of goods or services. For example, a company dealing in readymade garments may use associated marks for shirts, trousers etc. Which means trademarks deemed to be, or required to be, registered as associated trademarks under this Act?

Service marksThe Indian act of 1958 did not have any reference to service marks. Service means

service of any description that is made available to potential users and includes the provision of services in connection with the business of industrial or commercial matters such as banking, communication, education, financing, insurance, chit funds, real estate, transport, storage, material treatment, processing, supply of electrical or other energy, boarding, lodging, entertainment, amusement, construction, repair, conveying of news or information and advertising. Marks used to represent such services are known as service marks.

Certification Trademarks and collective marksA Certification trademark means a guarantee mark which indicates that the goods

to which it is applied are manufactured in a particular way or come from a certain region or use some specific material or maintain a certain level of accuracy .The goods must originate from a certain region rather from a particular trader. Certification marks are also applicable to services and the same parameters will have to be satisfied. Further these marks are remittable just like any other trademark. Agmark used in India for a various food items is a kind of certification mark was not in vogue at the time of introduction of Agmark. A Collective marks means a trademark distinguishing from those of others, the goods or services of members of an association (not being a partnership within the meaning of the Indian partnership Act, 1932), which is the proprietor of the mark.

Term of a registered trademark The initial registration of a trademark shall be for a period of ten years but may be

renewed from time to time for an unlimited period by payment of the renewal fees.

Copyrights and related rights:Copyright is a legal term describing rights given to creators for their literary and

artistic works. The kinds of works covered by copyright include: literary work such as novels, poems, plays, reference works, newspapers and computer programs; artistic woks such as paintings, drawings, photographs and sculpture; architecture; and advertisements, maps and technical drawings. Copyright subsists in a work by virtue of creation; hence it’s not mandatory to register .However, registering a copyrights provides evidence that the copyright subsists in the work and creator in the work.

Creators often sell the rights of their works to individuals or companies best able to market their works in return for payment. These payments are made depending on the

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actual use of the work, and are then referred to as royalties. These economic rights have a time limit, (other than photographs) is for life of author plus sixty years after creators death.

CopyrightsCopyright is a right, which is available for creating an original literary or dramatic

or musical or artistic work. Cinematographic films including sound track and video films and recordings on the disk, tapes, perforated roll or other devices are covered by copyrights. Computer programs and software are covered under literary works and are protected in India under copyrights. The copy right Act,1957 as amended in 1983,1992,1994 and 1999 governs copyright protection in India. The total term of protection in India. The total term of protection for literary work is the author’s life plus sixty years. for cinematographic films, records, photographs, posthumous publications, anonymous publication, works of government and international agency the term is sixty years from the beginning of the calendar year following year in which the work was published. For broadcasting the term is 25 years from the beginning of the calendar year following year in which the broadcast was made. Copyright gives protection for the expression of an idea itself. For example, many authors write text books on physics covering various aspects like mechanics, heat, optics etc. even though these topics are covered in several books by different authors , each author will have copyright on the book written by him/her ,provided the book is not the copy of some other books published earlier. India is the member of the Berne convention, an international treaty on copyright. Under this convention, registration of copyright is not an essential requirement for protecting the right. It would, therefore, mean that the copyright on a work created in India would be automatically and simultaneously protected through copyright in all the member countries of Berne convention. The moment an original work is created, the creator starts enjoying the copyright. However, an indisputable record of the date in which the work was created must be kept. When a work is published with the authority of the copyright owner, a notice of copyright is placed on publicly distributed copies. The use of copyright notice is optional for the protection of literary and artistic works. It is, however, a good idea to incorporate a copyright notice. As violation of copyright is a cognizable offence, the matter can be reported to the police station. It is advised that the registration of copyright in India would help in establishing the ownership of the work. The registration can be done at the office of the registrar of copyrights in New Delhi. It is also be noted that the work is noted for public inspection once the copyright is registered.

Coverage provide by Copyright(h) Literary, dramatic and musical work. Computer programs/software is covered within the definition of literary work.

(ii) Artistic work(iii) Cinematographic film, which include sound track and video films(iv)Recording on any disc, tape, performed roll or other devices.

Transfer of copyright The owner of the copyright in an existing work or prospective owner of the copyright in a future work may assign to any person the copy-right, either wholly or partially in the following manner.

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I) for the entire world or for a specific country or territory; or2) for the full term of copyright or part thereof; or3) relating to all the rights comprising the copyright or only part of such rights.

4. Geographical Indications (GI):GI are signs used on goods that have a specific geographical origin and possess qualities or a reputation that are due to that place of origin. Agricultural products typically have qualities that derive from their place of production and are influenced by specific local factors, such a as climate and soil. They may also highlight specific qualities of a product, which are due to human factors that can be found in the place of origin of the products, such as specific manufacture skills an traditions.

A geographical indication points to a specific place or region of production that determines the characteristic qualities of the product that originates therein. It is important that the product derives its qualities and reputation from that place. Place of origin may be a village or town, a region or a country.

It is an exclusive right given to a particular community hence the benefits of its registration is shared by all members of the community. Recently the GIs of goods like Chanderi Sarees, Kullu Shawls, Wet Grinders etc., have been registered.

Keeping in view the large diversity of traditional products spread all over the country, the registration under GI will be very important in future growth of the tribes/ communities/skilled artisans associated in developing such products.

Application for GI’s registration

Any association of persons or producers or any organization or authority established by or under any law for the time being in force representing the interest of the producers of the concerned goods, who are desirous of registering geographical indication in relation to such goods shall apply in writing to the Registrar in such from and in such manner and accompanied by such fees as may be prescribed for the registration of the geographical indication.

Punishment for falsifying GI A sentence of imprisonment for a term between six months to three years and a fine between fifty thousand rupees ant two lakh rupees is provided in the Act. The court may reduce the punishment under special circumstances.

Term of GI protection

The registration of a GI shall be for a period of ten years buy may be renewed from time to time for an unlimited period by payment of the renewal fees.

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5. Industrial Designs:

Industrial designs refer to creative activity, which results in the ornamental or formal appearance of a product, and design right refers to a novel or original design that is accorded to the proprietor of a validly registered design. Industrial designs are an element of intellectual property. Under the TRIPS agreement, minimum standards of protection of industrial designs have been provided for. As developing country, India has already amended its national legislation to provide for these minimal standards.

The essential purpose of design law is to promote and protect the design element of industrial production. It is also intended to promote innovative activity in the field of industries. The existing legislation on industrial designs in India is contained in the New Designs Act, 2000 and this Act will serve its purpose well in the rapid changes in technology and international development. India has also achieved a matured status in the field of industrial Designs and view of globalization of the economy, the present legislation is aligned with the changed technical and commercial scenario and made to conform to international trends in design administration. This replacement Act is also aimed to enact a more detailed classification of design to conform to the international system and to take care of the proliferation of design related activities in various fields.

Industrial DesignWe see so many varieties and brands of the same product(e.g car, television , personal computer, a piece of furniture etc) in the market which look quite different from other. If the products have similar functional features or have comparable price tags, the eye appeal or visual design of a product determines the choice. Even if the similarities are close , a person may decide to go for a more expensive item because that item has a better look or colour scheme.

What is being said is that the external design or colour scheme or ornamentation of a product plays a key role in determining the market acceptability of the product over other similar products. If you have ad design that gives you an advantage, then you must have a system to protect its features, objectives there would be wide scal imitation.

Design as per the Indian act means the features of shape, configuration, pattern, ornament or composition of lines or colours or composition of lines or colours applied to any article- whether in two dimension or three dimension or in both forms by any industrial process or means whether manual, mechanical or chemical, separate or combined, which in the finished article appeal to and are judged solely by the eye; but it does not include any mode or principle of construction or anything which is in substance a mere mechanical device. In this context an article means any article of manufacture and any substance, artificial or partly artificial and partly natural; and includes any part of an article capable of being made and sold separately. Stamps, labels, tokens, cards etc cannot be considered an article for the purpose of registration of design because once the alleged design i.e., ornamentation is removed only a piece of paper, metal or like material remains and the article referred to ceases to exist. An article must have its existence independent of the design applied to it. So, the design as applied to an article should be integral with the article itself.

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The essential requirements for the registration of design1. The design should be new or original, not previously published or used in any country

before the date of application for registration. The novelty may reside in the application of a known shape or pattern to anew subject matter. However, if the design for which the application is made does not involve any real mental activity for conception, then registration may not be considered.

2. The design should relate to features of shape, configuration, pattern or ornamentation applied or applicable to an article. Thus, designs of industrial plans, layouts and installations are not registrable under the act.

3. The design should be applied or applicable to any article by any industrial process. Normally, designs of artistic nature such as painting, sculptures and the like which are not produced inn bulk by any industrial process are excluded from registration under the act.

4. The features of the designs in the finished article should appeal to and are judged solely by the eye. This implies that the design must appear and should be visible on the finished article, for which it is meant. Thus, any design in the inside arrangement of a box, money purse or admiral may not be considered for showing such articles in the open state, as those articles are generally put in the market in the closed state.

5. Any mode or principle of construction or operation or any thing, which is in substance a mere mechanical device, would not be a registrable design. For instance, a key having its novelty only in the shape of its corrugation or bend at the portion intended to engage with levers inside the lock it is associated with, cannot be registered as a design under the act. However, when any design suggests any mode or principle of construction or mechanical or other action of a mechanism, a suitable disclaimer in respect thereof is required to be inserted on its representation, provided there are other registrable features in the design.

6. The design should not include any trademark or property mark or artistic works.7. It should be significantly distinguishable from known designs or combination of known

designs.8. it should not comprise or contain scandalous or obscene matter.

Duration of the registration of a designThe total term of a registered design is 15years. Initially the right is granted for

a period of 10 years, which can be extended, by another 5years by making an application and by paying a fee of Rs.2000/- to the controller before the expiry of initial 10years period. The proprietor of design may make the application for such extension even as soon as the design is registered.

Strategy for protectionFirst to file rule is applicable for registrability of design. If two or more

applications relating to an identical or a similar design are filed on different dates, the first application will be considered for registration of design. Therefore the application should be filled as soon as you are ready with the design. After publication in the official gazette payment of the prescribed fee of Rs.500/- all registered designs are open for public

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inspection. Therefore, it is advisable to inspect the register of designs to determine whether the design is new or not. There is yet another important provision for ensuring that the design is different from anything published any where in the world. This is quite a strict condition. There would be many designs, which are not protected, and these would not be part of any database maintained by design offices. An applicant has to take the responsibility of ensuring that he has done an extensive search and satisfied himself of the novelty of his design. However, in practice as the cost involved in filing and obtaining a design registration is not high, a design application is made if the stakes involved is not high and you have not copied any7 design.. The application for registration of design can be filed by the applicant himself or through a professional person (i.e. patent agent, legal practitioner etc.) An agent residing in India has to be employed by the applicant not resident of India.

6. Trade secrets:It may be confidential business information that provides an enterprise a

competitive edge which may be considered a trade secret. Usually these are manufacturing or industrial secrets and commercial secrets. These include sales methods, distribution methods, consumer profiles, and advertising strategies, lists of suppliers and clients, and manufacturing processes. Contrary to patents, trade secrets are protected without registration.

A trade secret can be protected for an unlimited period of time but a substantial element of secrecy must exist, so that, expect by the use of improper means, there would be difficulty in acquiring the information. Considering the vast availability of traditional knowledge in the country the protection under this will be very crucial in reaping benefits from such type of knowledge. Trades secret and traditional knowledge are also interlinked/associated with the geographical indications.

7. Layout design for integrated circuits:Semiconductor integrated circuit means a product having transistors and other

circuitry elements, which are inseparably formed on a semiconductor material or an insulating material or inside the semiconductor material and designed to perform an electronic circuitry function. The aim of the semiconductor integrated circuits layout-design Act 2000 is to provide protection of intellectual property right (IPR) in the area of semiconductor integrated circuit layout designs and for matters connected therewith or incidental thereto. The main focus of SICLD act is to provide for routes and mechanism for protection of IPR in chip layout designs created and matters related to it. the SICLD act empowers the registered proprietor of the layout design an inherit right to use the layout design, commercially exploit it and obtain relief in respect of any infringement. The initial term of registration is for 10 years; thereafter it may be renewed from time to time. Department of information technology. Ministry of communications and information technology is the administrative ministry looking after its registration and other matters.

8. Protection of New Plant Variety:The objective of this act is to recognize the role of farmers as

cultivators and conservers and the contribution of traditional, rural and tribal communities to the country’s agro biodiversity by rewarding them for their contribution and to simulate

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investment for R & D for the development new plant varieties to facilitate the growth of the seed industry. The plant variety protection and farmers rights act 2001 was enacted in India to protect the new plant variety; the act has come in to force on 30.10.2005 through authority. Initially sorghum, pearl millet, chickpea, green gram, black gram, lentil, Kidney bean etc. India has opted for sui-generic system instead of patents for protecting new plant variety. Department agriculture and cooperation is the administrative ministry looking after its registration and other matters. General principles governing the protection of new plant variety system in India and further details can be viewed at protection of plant varieties and farmers rights authority. India (PPV&FR)

Other related legislationIndia enacted the Biodiversity Act 2002 to ensure maintenance, sustenance and

development of its biodiversity. The Act has specific provisions about ownership of intellectual property rights associated with exploitation of biodiversity. Industries have to have the prior informed consent of the National Biodiversity Authority before exploring the biodiversity in India. In the event of R&D based on exploitation of biodiversity and associated local knowledge there is a provision for sharing of benefits of such work with the local community. No direct flow of funds is expected to the community. Instead the Union Government will meet out the benefits through State Government to the community.

The other Act having its influence over other Acts related to IPR is the information Technology Act, 2000 which looks at the security aspect of material being transacted on internet.

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