Solution for Data Theft

The IT firms today are playing on Big Data an they should prevent their data from data theft, from User information like E-mail Ids, passwords,credit card number or may be any other sensitive data in your system for personal use or may be for business plans are all sensitive data and unauthorized access by your employees can create business problems and may be loss of reputation.The loss of information by a person who accesses your company data is covered under Data Theft In a recent case of a call center where an employee stole the sensitive data of the customers and later they misused the data by impersonating as company employees and defrauding the customers in the name of original entity company, thereby that BPO lost all the sensitive data and reputation.

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Software Patents in India

India having a vast IT sector with so many talented engineers using their software development techniques to build and innovate new software and driving the software Industry, Big companies like IBM, Google, Adobe, Samsung etc.  Having there outsourcing centers in India spend considerable amount of their budget in R&D section. There is so much competition in the market that relying on other innovation is now becoming a trend, importing technology from other research technical institution is driving the Industry, but what about the infringement.

Today software’s since being intangible is easier to steal and thus the efforts of true innovator got defeated, but how software infringement is protected and how a legal framework for a valid technology transfer can be implemented is a big question.

Indian Patent Act after its 2005 amendment in compliance with the trips agreement included products as patentable, so does that mean that software product by a company or Individual is patentable?

Well the answer is dependent upon the type of software, Since software are intangible products that means that they are not patentable prima facie, the protection of software products come under the copyright act, but copyright act protection is not enough as its very difficult to prove if somebody is using another software without license then how can one prove copyright infringement when that person is hiding its source code? Copyright is more suitable for literary works but software is more complex in its nature, A copied content from a literary work can be easily traced, But software code can be changed easily but its main functionality still be retained, so when a source code is copied and its functionality is known and it is changed keeping in view of its main functionality then copyright act is failed here.

So the question is not the source code we can protect under copyright act but can the main functionality be protected under patent act?

Now the main functionality comes under an Idea when this Idea is written it become an Algorithm, but in order that algorithm to become patentable it must solve or improve any Industrial application then it will become patentable, for example an Algorithm can be patentable if the implementation of that algorithm increases the speed of Internet by two times, If the implementation of the algorithm will enhance the digital image filtering and hence enhancing digital pictures is patentable Vicom/Computer-related invention [1987] 1 OJEPO 14 (T208/84), but algorithm merely involving mathematical operations is not patentable, The algorithm is patentable when it is linked with enhanced Industrial application.

Software alone is not patentable but when software is linked with hardware and hardware performance is enhanced then that software embedded in hardware is patentable. suppose a pacemaker software which enhance the pacemaker operation is patentable, if a software embedded in car for better  fuel efficiency is patentable, Now suppose in India if someone manufacture an OS for mobile then that OS and its subparts like camera control, Image control is patentable if that OS satisfies the definition of patents which is Novelty, innovation, enhance efficacy.

Conclusion

In India the courts have not interpreted software patents but from the law it is clear that a software clubbed with hardware or an algorithm performing enhanced Industrial Application is patentable, the main Idea of patent is that it is for tangible things and if someone develops a software and by using that software some tangible innovation happens then that is patentable.

Why Emergence of social media has made IT act obsolete?

The IT act came into existence to protect the users from the crime related to electronic space, we know that India is a IT hub and a largest democratic country, That’s why we need IT laws .But Laws don’t keep pace with technology.
And at one point of time the technology surpasses and comes above the law, when this happens then the need to amend the law arises. This is what happened with the 66A IT act.
Let us first look at it what is 66A:
*[66A. Punishment for sending offensive messages through communication service, etc..-
Any person who sends, by means of a computer resource or a communication device,-
(a) any information that is grossly offensive or has menacing character; or
(b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill will, persistently makes by making use of such computer resource or a communication device,
(c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages shall be punishable with imprisonment for a term which may extend to three years and with fine.
Explanation: For the purposes of this section, terms “Electronic mail” and “Electronic Mail Message” means a message or information created or transmitted or received on a computer, computer system, computer resource or communication device including attachments in text, image, audio, video and any other electronic record, which may be transmitted with the message.
The analysis of the current IT act gives an Idea that the 66A IT act is vague it talks about the information but how it gets transmitted to other person this is not mentioned as in the year 2000 there was only one way to transmit information i.e. through E-mails or may through few websites but the concept of blogging or “free speech” was not there at that time. Because information through speech is different than other form of information. For example-: we have Article 14 for freedom of speech but for intimidating someone with information passed through messages does not come under freedom of speech.
The 66A IT act certainly needs to be amended as IT act was passed in year 2000 at that time there was no concept of social media, the 66A act was intended to cover only email messages ,the messages of email cannot be compared with that of post on social media. The email messages are personal in nature and is generally intended to single person, But in social media you have an audience and the case of posting on the wall certainly comes under freedom of speech,  so the posting on the facebook wall must be equated with article 14, and same limitation must be applied to it rather than treating it as a message. So with current technological advancement there certainly need to amend the IT laws.
By: Nitish Banka

Law relating to Cyber Squatting

As the scope of Internet is expanding day by day and more and more businesses are moving on the internet. sites like www.ebay.comwww.facebook.comwww.gmail.cometc. Have earned lot of reputation and are identifiable by their domain name then by any other trademark. While trademark is for physical world, domain names are the trademarks in the virtual domain. However Indian trade mark law does not recognizes domain name as trademarks, But still domain name work as a trademark, they are equally vulnerable to get infringed, diluted by the use of any other similar domain name.
Cybersquatting-This is a practice done by those people who are intending  to infringe the already used domain names specially those domain names which have a goodwill and reputation, they use the unused space in the domain name space and just register  a domain name which is deceptively similar to the reputed domain name and then they resell the deceptively similar domain name to either those persons who want to en cash upon the goodwill and reputation of the well known domain names, or to the reputed sites themselves to protect their good will they buy those domain name at an inflated price.
The World Intellectual Property Organization (WIPO) Arbitration and Mediation Center deals with domain name disputes under the new Uniform Dispute Resolution Policy applicable to generic top-level domain names adopted by the Internet Corporation for Assigned Names and Numbers (ICANN) on August 26, 1999. The WIPO Center’s Domain Name Dispute Resolution service has been established specifically to administer domain name disputes with the availability of electronic case filing facilities and a well developed case administration system.
Uniform Domain Name Dispute Resolution Policy was formed by the recommendation of (WIPO) and it is thereby formed to facilitate the dispute resolution due to use of domain name in bad faith.
i.                    If the use of an Impugned Domain is infringing upon the reputation or the goodwill of any other domain name then the impugned domain can be blocked by the body.
ii.                  If the Impugned domain is made to make profit from reselling because of its infringing nature, the body keeps a check on these practices.
iii.                The UDNDRP keeps a check on non bon fide use of trade name.
iv.                 It keeps a check on those domain names which causes confusion in the people.
The first case of cybersquatting was of WWF where the respondent had allegedly made a site www.worldwrestlingfederation.com and offered it to sell it to WWF at high dividend, WWF filed the suit against the respondent and found out that the alleged domain name is perhaps made in bad faith and hence was infringing upon the reputation and goodwill of the respondent. So the forum ordered to transfer the impugned domain name to WWF.
In India the first case of cyber squatting was of Yahoo Inc. V. Aakash Arora & Anr. Whereby the registered a deceptively similar domain name yahooindia.com, it was found banking upon the reputation and goodwill of yahoo.com
The Bombay High Court in Rediff Communication v. Cyberbooth & Anr AIR 2000 Bom. observed that the value and importance of a domain name is like a corporate asset of a company. In this case the defendant had registered a domain name radiff.com which was similar to rediff.com. The court gave a decision in favor of the plaintiff.
In another case the defendant registered a number of domain names bearing the name Tata. It was held by the court that domain names are not only addresses but trademarks of companies and that they are equally important. (Tata Sons Ltd v. Monu Kasuri & others 2001 PTC 432)
In  Satyam Infoway Ltd. v Sifynet Solutions 2004 (6) SCC 145  domain names www.siffynet.com and www.siffynet.net was found to be deceptively similar and Infringing upon the reputation of satyam, In this case The Supreme Court held that “domain names are business identifiers, serving to identify and distinguish the business itself or its goods and services and to specify its corresponding online location.” The court also observed that domain name has all the characteristics of a trademark and an action of Passing off can be found where domain names are involved. The decision was in favor of the plaintiff.
Conclusion
With the initiative of the WIPO and Indian laws now with synchronization with the WIPO, it is now a clear law that cybersquatting is now being treated at par with the trademark infringement, because merits on which the cybersquatting cases are decided are at par with that of trademark infringement .However still as the arena of cyber space is increasing day by day and with innovative features like cloud computing and businesses largely operating online, Even various business transactions are being handled from domain addresses than from physical addresses. There is a need to setup a specialized forum in the country to handle domain name related disputes. There must also be a specialized mechanism to dispose off these domain related disputes in the lines of UDNDRP.

By-:Nitish Banka(Legal Consultant based in New Delhi)

Mobile#-9891549997

Mail-:Nitish788@gmail.com