“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.

Leave a Reply

Your email address will not be published. Required fields are marked *