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| IIITA's e-Magazine |
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 Oct-Dec 2007 Vol 4 Issue 15 |
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Insight |
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| CAN OUTDATED INDIAN LAWS PROTECT INTELLECTUAL
PROPERTY RIGHT AND FREEDOM OF EXPRESSION”
by Aradhana Pandey &
Saumya Tripathi
MSCLIS 1st Sem, IIIT-Allahabad
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“Verily there is no purifier in this world like knowledge” |
Internet as a communication medium, itself poses a risk of violations of many aspects of laws and challenges to the law makers to come up with such kind of legislation which neither hampers the interest of persons using technology nor obstructs the way to development. Internet as a medium is here to stay and it has to be taken seriously.
The explosion of the internet as a vast decentralized non- geographical communication and commercial network has presented much unique governance, especially concerning regulation through law. It has become obvious that a crucial node of power for the purposes of law and governance is the INTERNET SERVICE PROVIDER (ISP). Uniquely placed in the decentralized interactive networks, ISPs influence conduct and enforce cultural norms or laws.
The question, then is, whether to enact a whole new system of laws that deal with ISP in particular or to modify the existing laws. The enactment of a new system of laws does have its own supporters. However, this would lead to the destruction of the very concept for which the internet is known i.e. freedom of information.
Therefore, one will look into the other option and see as to how one can modify the existing laws that deals with the protection of cyber world. However, there does exists a problem with this form of legislation as well –it makes the law of certain countries powerful enough to deal with these issues, but internet is a global medium and, as such , this issue has to be tackled at an international level. What one requires is a change in the domestic laws of various countries but through a process of international harmonization.
In Indian context, then Intellectual property rights are dealt under the provision of Indian Copyright Act, 1957. The Act does not have any section dealing with piracy of computer software from the internet. Though the Act, when it comes to software takes care of offline piracy, it fails when it has to deal with online piracy.
The Information Technology Act, 2000 has made significant amendments to other such as IPC, Indian Evidence Act, and Criminal Procedure Code. However, one area that existing principles of copyright may be applied to the internet through analogy, it is true the medium does pose new challenges which analogy may be to deal with. Thus, I strongly recommend the following amendments in (???? Name of the act):
(1) Section 2(ff) which defines what is meant by “communication to the public” should be amended to include an explanation to take account of the internet.
(2) Section 2(ffc), which defines what is meant by software, includes web pages also.
(3) Section 2(hh) which defines the term duplicating equipment should include, compact disc writers, floppy drivers and electronic copying of the internet.
(4) To incorporate the existence of an implied licenses under the defenses available to users.
(5) To increase the quantum of fine that can be imposed on the violators of the copyright.
(6) To tighten the enforcement mechanisms to take into account the internet.
As far as we are concerned, we would like to strongly recommend liabilities of ISPs and favor ISPs for two reasons:
• To promote e-commerce and I would like to strongly recommend and various transaction those are electronically placed.
• To pave the way towards globalization, the need of time.
In order to favor ISPs one would have to go for test of technological perspective of reasonable man is suggested in order to determine ISP liability. The other suggestions are:
• ISPs should internalize losses caused by their existence as a cost of doing business. This encourages enterprise (ISPs) to take precaution against relevant losses or raise compensation for victim by spreading those costs over a broad segment of society.
Next to this point, I would like to give a new dimension to the section 79 of IT Act, 2000 especially the phrase “DUE DILLIGENCE”:
(1) Posting of notices, warning to the potential users of the site not to put libelous material on site.
(2) A periodic monitoring of site and bulletin boards with a view to deleting any problematic material.
(3) The introduction of a system to facilitate speedy publication of apologies in respect of any statement published on sites , which are found to contain libelous allegations and,
(4) Making access to the web sites conditional upon the provision by any user to provide his or her name, address and other specified identifying data so that the author of any defamatory statement can be easily traced.
ISPs and website hosts or owners must, therefore, take care to control as far as possible, the information published on their web sites. Factors that could possibly be taken into account in determining whether an ISP or a website have exercised reasonable care would be:
(1) The nature and purpose of site which contains defamatory material.
(2) Whether monitoring system is proportional to size of the site.
(3) The amount and characteristics of information flowing through the site.
(4) Whether or not the web site attracted repeat offenders and, if so, why was the site then removed?
(5) The character antecedents of site owners.
(6) Whether or not the person being defamed did with the defamatory material away immediately upon request.
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