"The law cannot be totally disregarded or else there would be cyber terrorism"

-Pravin Anand, Intellectual Property Lawyer.

It is difficult to

describe the 43-year-old Pravin Anand who calls himself an advocate, patent and trademark

attorney. Practicing in the areas of patent, trademark and copyright litigation, besides

prosecution and transfer of technology, Anand is not only one of the leading speakers on

Intellectual Property Rights (IPR) but also one of the most vocal and well known. A

familiar face at the various international seminars, from World Intellectual Property

Organization (WIPO) to SAARCLAW to Asian Trademark Summit to the Euro Forum, it wouldn't

be far-fetched to call him as one of the earliest proponents of IPR. A globe-trotter,

having traveled from Abuja in Nigeria to Ulaan Baatar in Mongolia, Anand has been

associated as a speaker with the WIPO since 1988.






Besides, being an ardent speaker, he is a writer who has represented the Indian side of
the story to at least half-a-dozen international books on the subject. And so it is hardly

surprising that he is at the forefront of pushing the cause of cyber laws to enable

ecommerce activities in India. Here, Anand responds to queries on cyber laws and related

issues:

What is the status with respect

to formulation and implementation of cyber laws? Is the Government of India moving on this

issue at all?



As yet, we do not have any statutory amendments in India. We only have the general

principles of common law and existing intellectual property legislations such as the

Copyright Act 1957, the Trade and Merchandise Marks Act 1958, the Designs Act 1911 and the

Patents Act 1970. The Government is likely to move the bill for Information Technology

Draft Legislation in the budget session or in the monsoon session. It is difficult to say

when they would do this.

How pertinent or relevant are

some of the issues addressed in the cyber laws? Are these at par with the prevailing

international cyber laws?



The issues in cyber laws are extremely complex. At the philosophical level, there is

the debate on the degree of control which should be exercised on the net. The Freedom

School proposes that there should be no control at all. However, a more pragmatic approach

is to regulate only to the extent necessary for preventing what would otherwise be

criminal activities in the physical world. Thus, activities that amount to defamation,

infringement of intellectual property, breach of privacy, nuisance, destruction of

property, theft, fraud, cheating etc. must be regulated by laws.






To make things more complex, there are several technologies on the net, the normal and
legitimate use of which would amount to a violation of the existing laws. Thus

hyperlinking is the strength of all search engines and, in fact, is critical on the WWW.

However, the Sheldon Times case of the Scottish court brought out how hyperlinking can

lead to copyright violations and in itself (even if there is no such violation) be

offensive since it may direct people to portions on a web site bypassing the advertisement

zones. For the net, hyperlinking is a question of survival and that is why a Georgia

statute and even the ultimate settlement in the Sheldon Times case have permitted

hyperlinking as a fair use.



Take 'spamming' or sending of uninvited junk mail. Does this amount to 'nuisance.' Take
'framing' or 'metatagging.' There are cases which are discussing privacy issues on the one

hand and the desirability of maintaining public advantage through access to these

technologies on the other.






The courts are still in the process of balancing and, in due course of time, an
equilibrium will be found and standards will emerge. On the question of cybersquatting,

the recent decision of the Delhi High Court (Yahoo Inc vs Akash Arora; Suit No 2469 of

1998) is a classic decision where the court has applied trademark principles to the net.

To what extent is this a

hindrance with respect to the growth of e-business in India? Or is its impact restricted

to ecommerce only?



As stated above, the optimum balance would have to be struck between growth of

ecommerce and the law. The law cannot be totally disregarded or else there would be cyber

terrorism, hacking and the most vicious crimes that could destroy the globe. At the same

time, you cannot have totalitarian regime on the net. The balance will take time to

develop as there are hundreds of areas and issues in each of which delicate balances are

been struck. After a period of a few years, we would have a mass of case laws which will

dictate these standards. Most countries would also legislate by then.

Are there any precedents to

indicate a direct correlation between a country's implementation of cyber laws and

corporates moving to e-business/commerce as a way of life? Or is it just a mindset that

you cannot proceed unless cyber laws are in place?



I think there must be some correlation between the implementation of cyber laws and

ecommerce as a way of life. At a simple level, an Indian consumer cannot use his credit

cards under the existing laws to purchase goods on the net. Unless this law changes,

ecommerce in the sale of goods cannot grow. At a confidence level, unless companies are

sure that there is a confidentiality in their transactions, they will not have the

confidence to do important transactions on the net.






There are MNCs which prohibit the use of emails for certain important tasks such as legal
work. This can only change when emails become as secure as fax messages. Companies must

also be sure that the records in electronic form are admissible in evidence in a court of

law so that they will constitute binding contracts, the breach of which is actionable. The

jurisdictional rules must also be clear as companies will fear being sued in remote parts

of the world.

Why is the Government dragging

its feet on the issue of cyber laws? Is there any particular reason for this?



I think the Government is keen to go on, but it is having problems with parliamentary

time.

What about the Digital Signature

Act?



Electronic signatures, digital signatures and secured digital signatures are all a part of
the Information Technology Draft Legislation. According to me, this legislation is a

wonderful thing for India. If we pass it quickly, we will be seen as world leaders in the

field. If we drag our feet, many other countries would overtake us and we will lose any

competitive advantage that we may have in projecting ourselves as an IT power.