Product Description
This digital document is an article from American Journalism Review, published by University of Maryland on January 1, 1997. The length of the article is 795 words. The page length shown above is based on a typical 300-word page. The article is delivered in HTML format and is available in your Amazon.com Digital Locker immediately after purchase. You can view it with any web browser.

From the supplier: A Clinton administration proposal would give database developers legal recourse against those who use information in the database in such a way that it competes with the developer’s business interests. This proposal creates a property right that runs counter to the ‘fair use’ doctrine, which allows portions of copyrighted materials to be used for purposes such as news reporting. The proposal would restrict the dissemination of information.

Citation Details
Title: Copyright protection for databases.
Author: Jane Kirtley
Publication: American Journalism Review (Refereed)
Date: January 1, 1997
Publisher: University of Maryland
Volume: v19 Issue: n1 Page: p50(1)

Distributed by Thomson Gale

Copyright protection for databases.: An article from: American Journalism Review

Product Description
Do you have any kind of legal letter on your web site? Like a disclaimer page, privacy policy, or terms and conditions? If you don’t, then you can be in big trouble. It’s not hard to add the legal letters to your web site and emails, but you do need to know which letters you actually need.
–
Many Internet marketers take their online business for granted, without properly protecting it incase of legal troubles. Don’t make this mistake… learn today what you must do to make sure that you, your web site, and your products are well protected.
–
Learn What You Need To Do To Keep Your Internet Business Protected!
–
In “Online Legal Protection” you will learn;
–
* How much trouble do you think you could get into if a hacker was able to find customers name’s, address’s, and payment information from within your web site? This is why you NEED to be protected online.
–
* As an Internet marketer, your personal information is a lot more accessible to everyone online… this is just another reason why you need to protect yourself and your business.
–
* Do you use disclaimers on your web site? If you don’t… you could be next in line for a big lawsuit.
–
* Some Internet marketers still do not use any form of unsubscribe information in the advertisement emails that they send. Are you one of them? You can learn why you MUST start doing so!
–
* How easy it really is to copyright an ebook or any other type of product. It can be done in a matter of minutes.
–
As well as…
–
* You will learn how to protect your web site, to keep hackers out of it and keep protected files safe.
–
* You will get to see and use sample legal letters such as Terms of Service, Privacy Policy, and more.

Online Legal Protection: How To Keep You And Your Internet Marketing Business Legally Protected Online.

Product Description
This digital document is an article from National Underwriter Property & Casualty-Risk & Benefits Management, published by The National Underwriter Company on October 28, 1996. The length of the article is 790 words. The page length shown above is based on a typical 300-word page. The article is delivered in HTML format and is available in your Amazon.com Digital Locker immediately after purchase. You can view it with any web browser.

From the supplier: The National Council on Compensation Insurance (NCCI) will appeal an Oct. 3, 1996, US District Court ruling that found that its codes and formulas for workers’ compensation rate filings do not have copyright protection. The NCCI sued former VPs Michael Camilleri and Robert Hilton, Industrial Data Resources, and the Adorno and Zeder law firm for violating statistical manual copyrights which had been filed in 1979. The ruling found that the manuals are in the public domain.

Citation Details
Title: NCCI appealing dismissal of its copyright action. (National Council on Compensation Insurance Inc. lawsuit claiming copyright protection for its statistical formulas)
Author: Creston Nelson-Morrill
Publication: National Underwriter Property & Casualty-Risk & Benefits Management (Magazine/Journal)
Date: October 28, 1996
Publisher: The National Underwriter Company
Issue: n44 Page: p10(2)

Distributed by Thomson Gale

NCCI appealing dismissal of its copyright action. (National Council on Compensation Insurance Inc. lawsuit claiming copyright protection for its statistical … & Casualty-Risk & Benefits Management

Product Description
This digital document is an article from National Underwriter Property & Casualty-Risk & Benefits Management, published by The National Underwriter Company on October 28, 1996. The length of the article is 790 words. The page length shown above is based on a typical 300-word page. The article is delivered in HTML format and is available in your Amazon.com Digital Locker immediately after purchase. You can view it with any web browser.

From the supplier: The National Council on Compensation Insurance (NCCI) will appeal an Oct. 3, 1996, US District Court ruling that found that its codes and formulas for workers’ compensation rate filings do not have copyright protection. The NCCI sued former VPs Michael Camilleri and Robert Hilton, Industrial Data Resources, and the Adorno and Zeder law firm for violating statistical manual copyrights which had been filed in 1979. The ruling found that the manuals are in the public domain.

Citation Details
Title: NCCI appealing dismissal of its copyright action. (National Council on Compensation Insurance Inc. lawsuit claiming copyright protection for its statistical formulas)
Author: Creston Nelson-Morrill
Publication: National Underwriter Property & Casualty-Risk & Benefits Management (Magazine/Journal)
Date: October 28, 1996
Publisher: The National Underwriter Company
Issue: n44 Page: p10(2)

Distributed by Thomson Gale

NCCI appealing dismissal of its copyright action. (National Council on Compensation Insurance Inc. lawsuit claiming copyright protection for its statistical … & Casualty-Risk & Benefits Management

Product Description
This digital document is an article from National Underwriter Property & Casualty-Risk & Benefits Management, published by The National Underwriter Company on October 28, 1996. The length of the article is 790 words. The page length shown above is based on a typical 300-word page. The article is delivered in HTML format and is available in your Amazon.com Digital Locker immediately after purchase. You can view it with any web browser.

From the supplier: The National Council on Compensation Insurance (NCCI) will appeal an Oct. 3, 1996, US District Court ruling that found that its codes and formulas for workers’ compensation rate filings do not have copyright protection. The NCCI sued former VPs Michael Camilleri and Robert Hilton, Industrial Data Resources, and the Adorno and Zeder law firm for violating statistical manual copyrights which had been filed in 1979. The ruling found that the manuals are in the public domain.

Citation Details
Title: NCCI appealing dismissal of its copyright action. (National Council on Compensation Insurance Inc. lawsuit claiming copyright protection for its statistical formulas)
Author: Creston Nelson-Morrill
Publication: National Underwriter Property & Casualty-Risk & Benefits Management (Magazine/Journal)
Date: October 28, 1996
Publisher: The National Underwriter Company
Issue: n44 Page: p10(2)

Distributed by Thomson Gale

NCCI appealing dismissal of its copyright action. (National Council on Compensation Insurance Inc. lawsuit claiming copyright protection for its statistical … & Casualty-Risk & Benefits Management

Product Description
This work analyses the scope of copyright protection for computer software in the United Kingdom,and examines challenges for the future. The work presents the case for the adoption and application of infringement methodology emanating from the courts in the United States, resulting in a narrower scope of protection than is presently argued for by many UK academics, practitioners and judges alike. The work makes a careful evaluation of the efficacy of the various prevailing tests for infringement of copyright in software and their progenies, suggesting an improved formula and advocating the utility of limiting doctrines to assist in the determination of substantial similarity of particular non-literal software elements, user interfaces and screen display protection. The monograph also contains a detailed study of reverse engineering, copyright defences, permitted acts, database protection and the copyright-contract interface in the context of computer software, not omitting crucial discussions of the internet, digital dissemination and the impact of recent treaty and legislative initiatives on British copyright law. As such it will be an important resource for practitioners, lecturers and students alike.

The Copyright Protection of Computer Software in the United Kingdom

What is wrong here is that nothing in the USA can protect you from an over zealous judge who feels your assets should be forfeited to satisfy some sort of debt or perceived debt. You are subject to the mercy of some Judge. Now if the Judge over steps his bounds you are faced with paying massive legal bills to correct the situation in the appeals court. Ask some of these law firms that do these asset protection structures what their rate per hour is going to be to try and recover your assets on appeal. Figure on rates starting at $325.00 and going up to $650.00 for a partner in a top drawer law firm in the USA. Ouch. Litigation in the USA is too prevalent and expensive to allow one to comfortably use this jurisdiction for preservation of assets. The legal expenses of defending the asset protection structure can wipe out the assets.

Next problem is government confiscation of funds. Usually this is temporary pending some court date but could be permanent in theory and/or practice. In the USA some government agencies can confiscate funds without taking you to court, thus no trial, no being judged guilty by a court of your peers, no due process, no trial by jury etc. There are other government agencies that need to get a court order to confiscate your funds and other assets but the courts tend to listen hard to these agencies and usually give them what they want which is going to be your assets. There are no really anonymous corporations in the USA. There is no bank secrecy or privacy at all. There is really no secure way to protect your assets from confiscation. Sure you might be able to go to court later on after the confiscation and convince a judge to return all or some of your assets but with what funds are you going to pay for your legal defense. Now you have to convince a lawyer to take your case on hoping he can get the judge to allow your money to be used to pay for your legal defense. These government agencies don’t even want you to be able to pay for your defense. They will argue that they are so sure of winning it is a waste of money to let you use the funds to pay for a high powered law firm. How can there be asset protection in this environment?

Let me explain what an Ex Parte proceeding is. Let us assume you feel you have a good case in a court of law against a person or corporation. You hire a reputable law firm and prepare a complaint with whatever evidence you may or may not have. Next you motion the court for an Ex Parte hearing in the Judges chambers in private before the other party even knows you are suing them. You basically tell the Judge that you feel you have an excellent chance of winning and you are most concerned that the defendant will attempt to flee with their assets when the lawsuit commences. You then ask the court to freeze the bank accounts, real estate and other property of the defendant so the defendant can not flee with the assets. You of course post a bond to cover any damages in case you lose. Now it is going to be an unlikely event that you lose since your adversary now has all his money frozen so how is he or she going to pay for an adequate legal defense. Essentially you are suffering as if you were bankrupt all before you had your trial in court, and in this case even before you knew anyone is suing you. If the defendant argues that he needs the money for defense the plaintiff argues that it is going to be a waste of time and money to let the defendant blow money that could go to them on a legal defense. So now the defendant is essentially broke, how can he manage his business and retain adequate legal counsel? Mind you all of this happened without the defendant ever having a chance to defend himself in court. This is one tactic wealthy corporations employ against small business people that get in their way. Don’t let your lawyer tell you this is rarely done. It is a common procedure. Most of the internet giants do this in their litigation, look up their court cases to see it happening. Government regulatory agencies have a very similar way of doing this in the court system as well. It operates slightly more openly but has the same effect frozen assets before you get your day in court.

Do you know what a John Doe lawsuit is? I will explain this unusual tool of legal chicanery that as far as we know works in the USA. Let us say you are a large billion dollar corporation and you feel you have been harmed in some way but are not able to identify the party causing the injury. Say someone has been violating copyright protected material of yours by distributing it. You file a lawsuit in Federal Court against John Does 1-99 stating that you will identify the actual defendants as their identities are uncovered in the course of discovery. You send a clerk down to the courthouse and he has the court clerk stamp the lawsuit and now this lawsuit is live. OK now you have the subpoena power of the federal court at your disposal and there is no opposing counsel to block your subpoenas and depositions. So you go about your merry way issuing subpoenas for bank accounts, phone records, stock brokerage accounts, etc. all very lawful USA subpoenas. You might even take a few depositions to get the facts explained in more detail. The judge need not individually approve these subpoenas for them to be valid. So basically you don’t even need to sue a real person or corporation to get to use the subpoena power of the US Federal Courts. Remember the entity being served with the subpoena like the bank or stock broker has no obligation to tell you the owner of the bank account that a subpoena was served on them for your records and they could even be ordered to keep their mouth shut so as to prevent flight with the assets. Another fine example of the sheer lack of privacy in the USA whereby your bank records can be examined by a stranger based on a lawsuit with nobody. If you haven’t thought of it consider what happens to your bank records after the law firm has them. Can they enter them into the lawsuit and thus make them public or semi-public? Can they share them with others? Could they even publish them on the internet? Good questions to ask yourself now, not after something like this happens to you.

I know one can argue that their trust or corporation is not responsible for personal debts and there are court cases to back this up, but then inquire as to how much money it is going to cost you to defend the asset protection strategy against aggressive collection lawyers who know just how to make it real expensive for you so as to bring about a settlement. It is a legal jungle in the USA and we can not any daylight in trying to protect assets in the USA.

Now we can talk about private detectives in America getting bank information, credit card information, phone records etc. Go look at the ads on the internet and call these private detectives up, they even take credit cards. We can also go on to discuss identity theft from security violations concerning bank accounts, credit cards, public records (Panama has no credit bureaus so identity theft is of course not something frequently seen). If you vest your Panama real estate in the name of an anonymous bearer share corporation how could that possibly help someone do an identity theft on you? If your bank accounts were covered by bank secrecy laws wouldn’t that help insulate you from identity theft? Panama is a much safer place legally.

In Panama lawyer games like those described above do not exist. Corporate and foundation assets belong to the corporation or foundation. Tagging on personal debts is extremely difficult to prove and there are tight statues of limitation concerning such fraudulent conveyances to defraud creditors ( three years). USA lawyers can not practice in Panama, they need to retain a Panama lawyer if they ever wanted to do anything in Panama. Government agencies from foreign countries have no levy, attachment or confiscatory powers in Panama. You and your assets are much safer in Panama.

For more information, please visit:

http://www.panamalaw.org

email at: panamalegal@hush.com

The best form of protection is to make your images fit for use only as web graphics.

1. Don’t make your pictures any bigger than necessary. The bigger an image, the easier it is to achieve quality prints.

2. Use image compression/optimisation software to reduce the file sizes of your images. On screen, there is little difference between a compressed and uncompressed file, however compressed files can comprise up to 90% less information, and will not withstand enlargement without severe loss of quality.

3. Watermark your images. Visible watermarking is simply a matter of placing some text, or a graphic, over your image. The trick is to achieve a balance between making your watermark difficult to remove, and not overly obscuring the image.

4. Use a correctly worded copyright notice on your web pages, and as your image watermark. This should comprise the © symbol (to let others know they should not use the artist’s work without permission), the name of the copyright owner next to it (so that anyone wishing to use the image to trace the copyright holder), and the year in which the image was created (to let others know when the term of protection started).

File protection

There are a number of easy steps that can be taken to keep your image files as inaccessible as possible.

5. Protect your image directory. Most web designers put their images and graphics in suitably named folders (sub-directories). Browsers automatically look for an “index” or “default” page within each sub-directory, and if there isn’t one, they display a list of all the files in that sub-directory. This means anyone can get a complete list of all your images and grab anything they want. There isn’t much point in employing other safeguards (such as no right click) if folder content lists are accessible. To stop this happening, place an index page in each folder where you have images. The page can be a blank document, or could include an appropriate message.

6. You can stop Browsers from caching the images on your web pages, by inserting the following code HEAD tags of your web page: <META http-equiv=”Pragma” content=”no-cache”>.

7. Internet Explorer 6 has an annoying little feature called the “Image Toolbar”. Whenever your mouse hovers over an image, the Image Toolbar pops up, and invites you to save, print (etc). To disable the Image Toolbar, insert the following code between the HEAD tags of your web page: <META HTTP-EQUIV=”imagetoolbar” CONTENT=”no”>.

Code techniques

There are a number different ways in which you can use code to deter people from copying your website images, but unfortunately NONE of these are fool proof. They will only ever discourage the casual thief.

8. Use a rollover script to display images. When the mouse is moved over the image, a second image appears with a copyright notice, for example. Right clicking will only grab the rollover image.

9. Null images and nested tables (or overlapping layers, or even CSS). Briefly this involves creating a transparent image (GIF or PNG) the same size as the image you wish to protect. The “real” image is placed in the first table, and the “null” image placed in a second (nested) table, so that it is in front of the real image. If you right click to save the image, the transparent GIF/PNG is grabbed.  

10. Sectioning images is a process in which that image is divided into parts to form a number of separate images. These are then reassembled in a “zero border” table, recreating the original image. Right clicking will save only a section of the image.

11. Disabling the mouse right click functions prevents the most common method used to grab an image. There are several JavaScripts available – with and without pop up warning messages.

12. Slide-Shows
Java and Flash slide show scripts can be a good choice. The images cannot be saved directly, however, they remain vulnerable to screen grabs.

Other options

13. Invisible watermarking, like those created by Digimarc, digitally embeds a personal identification number within the image. They do not prevent your images from being taken, but offer proof of ownership.

14. There are a number of further techniques and software options, but they all require either a little expertise, or expenditure.

Portraits by John Burton

Protecting intellectual property (IP) in China requires a multi-pronged strategy including registration, workplace security, employee contracts, commercial contracts and enforcement.

Registrations

China’s IP registration regimes are more or less consistent with international standards.

Trademarks – are protected on a first-to-file basis, with an exception for well-known trademarks. Do not rely on the “well-known” exception, however (unless you are Coca-Cola), because whether a particular trademark is “well-known” or not is a time-consuming argument that keeps IP lawyers in business all over the world. If a trademark uses words, the Chinese language equivalent should also be registered.

China has adopted the international Classification of Goods and Services under the Nice Agreement, and has also adopted the international registration regime under the Madrid system.

FIE Business Names – must be in Chinese and registered with the local Administration of Industry and Commerce before an application to set up a Foreign Invested Enterprise can be submitted (see this site’s Company Startup Guide for details on company name registration). Since China does not have a national register of business names, registrations are valid only within a particular locality (and an FIE business name cannot be registered in any location except its location of establishment). Trademark registrations offer better protection in this respect.

Patents & Designs – are protected on a first-to-file basis. China is a member of the Paris Convention, so filings in a member country within applicable time limits can also gain priority in China. More ominously, compulsory licenses may be granted (i) to qualified enterprises if the owner of the patent fails to license the patent on reasonable terms, and (ii) in the event of a national emergency. Because of this, many foreign companies do not register patents for sensitive technology in China. See Technology Transfers and Licensing for related information.

Copyrights – Copyrighted material may be registered with the China National Copyright Administration. As in the United States, copyrights are not granted on a first-to-file basis. Registration does serves as useful evidence of ownership of a copyrighted work, but it is not a legal precondition to enforcement.

Software – is considered copyrighted material and may be registered with the China National Copyright Administration. Registration requires the filing of source code (with some code blacked out). As a consequence, many foreign companies refuse to register their software in China.

Domain Names – are protected on a “first-to-file” basis. A foreign company
must have an FIE or Representative Office in order to register a “.cn” domain name in China.

Workplace Security

It is strongly advised to create a “plumbing” system to control IP leakage in the workplace.

IT systems and any hard copies of IP should be kept in an access-restricted, secure location.

Confidential information should be distributed on a strict “need to know” basis.

Confidential material should be marked “Confidential Information” in Chinese in anticipation of possible litigation in Chinese courts.

Employees

Independently investigate the reputation and trustworthiness of applicants for sensitive positions during the recruitment process.

Labor contracts should be prepared carefully. You should consider including the following in all labor contracts:

Confidentiality obligations

Non-compete clauses – Post-termination non-competition clauses should be limited to a reasonable geographic area and time limit. Compensation is also required to be paid during the period of non-competition.

Assignment – Although China recognizes the work-for-hire principle, the labor contract should clearly assign ownership of intellectual property created in the course of employment; otherwise IP rights may prove practically impossible to enforce against an employee who creates an IP-related work for hire.

Product Selection

Despite the additional tax breaks and incentives available, think carefully before manufacturing products that require new and sensitive technology in China. Components requiring new and sensitive technology may be imported into China in a secure manner for integration with the rest of the product.

Commercial Contracts

Since many commercial arrangements, even sourcing materials and components, can necessitate an exchange of intellectual property, adequate protections should be included in the contracts and associated documentation.

Administrative Enforcement Action

Various government organs have the power to take administrative action against IP infringers:

National Copyright Administration – The NCA is the “big gun” of the Chinese IP enforcement arsenal and is endowed with broad enforcement powers. They may order cessation of the infringing activities, confiscate illegal income, confiscate and destroy illegal copies, and impose fines.

State Administration of Industry and Commerce – The SAIC and its local AICs have a reputation for efficient trademark enforcement action, including investigations and raids. The SAIC also handles disputes regarding business names, registered trademarks, trade secrets, and passing off activities.

Customs – may confiscate products that infringe trademarks, copyrights and patents.

China Patent Office – may help with patent enforcement through investigation, mediation and raids.

General Administration of Quality Supervision, Inspection and Quarantine – may get involved if product quality and health issues are at issue.

Administrative enforcement is a relatively inexpensive and efficient alternative to litigation, and it is easier to win a conviction.

Litigation

If administrative action fails to bring the desired result, litigation may have to be resorted to. Chinese courts can issue injunctions and award damages, although in practice their enforcement powers are typically weaker than in Western nations.

Criminal Prosecution

Criminal liability, including imprisonment, can be imposed for IP violations, although successful prosecutions are rare. Financial thresholds that must be met before criminal liability can be assessed can be difficult to prove. These thresholds include:

RMB50,000 turnover for knowingly selling goods with counterfeit registered trademarks

RMB50,000 turnover or RMB30,000 profits if trademarks are applied to goods without authorization

International Enforcement

Products that infringe intellectual property rights can be interdicted by customs at the destination port. It is also possible to seize the overseas assets of infringers located in China.

Technology Transfers and Licensing

Foreign investors often license technology and intellectual property such as trademarks, patents, copyrighted material and trademarks to the FIEs they invest in. A foreign party may also license technology to unaffiliated Chinese companies, such as in manufacturing or management contracts. Unlike joint venture contracts, licensing contracts can be governed by foreign law.

Proper licensing will help the foreign party control its technology and secure the payment of royalties (registration is required for the latter). Only the brave, however, will dare to license sensitive technology to an entity which the foreign party does not control.

Technology transfers are understandably less common than licensing and are usually used as part of the foreign investor’s contribution of technology to a Foreign Invested Enterprise as Registered Capital.

Technology Restrictions

Chinese foreign trade law recognizes three categories of technology: Permitted, Restricted, and Prohibited. These are contained in a catalogue that lists specific technologies.

Permitted technology is simply technology which has not been classified as Restricted or Prohibited.

Restricted technology may not be imported without a license, and is generally related to the chemical, petrochemical, biochemical, biological, and petroleum refining industries.

Prohibited Technology is technology that is considered to endanger national security, the public interest, or public morals by placing people’s lives or health at risk or destroying the environment.

Paperwork

A license for restricted technology must be approved by and registered with the Commission of Foreign Trade and Economic Cooperation (COFTEC). COFTEC will adjudicate a license application within 30 days. Licensing contracts for Restricted technology are effective only after COFTEC issues the corresponding Technology Import License.

Prohibited technology may not be brought into China.

Certain types of Permitted technology, while not subject to licensing requirements, are still subject to filing with COFTEC.

Technology transfers relating to certain major projects must be registered with and approved by the Ministry of Commerce. Trademark licenses must be filed with the
China Trademark Office within three months of execution in order to remit royalties out of China. Foreign trademarks must be recorded at the China Trademark Office in order to remit royalties out of China. Trademark recordation takes about a year and a half.

Improvements

A foreign company may not prohibit a licensee from improving the licensed
Technology, and these improvements become the property of the improver.

Technology as FIE Capital Contributions

Technology may be contributed as part of an FIE’s Registered Capital; however, the FIE will then become the owner of the technology and the foreign contributor will have to license the technology from the FIE if it wants to use it.

Technology contributed as capital is required to be appraised upon importation and should also be appraised by the Ministry of Commerce or the relevant local COFTEC as soon as the FIE is approved.

Since the Company Law requires 30% of the Registered Capital of an FIE to be contributed in currency (20% of the initial installment of Registered Capital), it follows that alternative forms of contribution, including technology, cannot total more than 70% and 80%, respectively.

In the recent years India has emerged as one of the preferred destinations for offshore business outsourcing. Financial services, educational services, legal services, banking services, healthcare services, marketing services and telecommunication services . The factors that have turned India into one of the hotspots for offshore outsourcing are the educated and unemployed masses, enterprising nature of Indians who have excellent spoken English skills and relatively cheap labour.

In June 2005, one BPO was in the eye of the storm when one of its employees sold personal data belonging to a large number of British nationals to an undercover reporter from the British tabloid ‘The Sun’. The incident sparked off a debate among the offshore industry circles, media and the legal world as to how safe foreign data is in Indian hands. The discussions were also veered towards the need for some kind of protection for personal data in India which is absent currently.

Data Protection Issues have time and again raised concern in the authorities about the cyber extortion, privacy, confidentiality, data protection and national security. With the increasing penetration in the online usage of more and more people towards internet, e-banking, e-shopping etc. the concerns of data protection and related issues are growing day by day.

Privacy is closely connected to Data Protection. An individual’s data like his name address, telephone numbers, profession, family, choices, etc. are often available at various places like schools, colleges, banks, directories, surveys and on various web sites.

Passing on such information to interested parties can lead to intrusion in privacy like incessant marketing calls.

It would be a misnomer to say that India does not have ‘data protection’ legislation at all.

This is factually wrong. The fact is that there exists data protection legislation in India.

The subject matter of data protection and privacy has been dealt within the Information

Technology Act, 2000 but not in an exclusive manner.

Data protection is not a subject in any of the three lists in Schedule VII of the

Constitution of India. But Entry 97 of List 1 states: “any other matter not enumerated in

List II and List III …….” Thus only the Indian Parliament is competent to legislate on

data protection since it can be interpreted as any other matter not enumerated in List II

and List III.

Data protection is, thus, a Central subject and only the Central Government is competent

to frame legislations on issues dealing with data protection. In fact, the Information

Technology Act, 2000,and the Indian Copyright Act, 1957 , enacted by the Indian Parliament are the main legislations in this field, which contains provisions on data protection. There is also a proposed Personal Data Protection Bill, 2006, which deals with the protection of personal data.

THE INFORMATION TECHNOLOGY ACT, 2000

The Indian Parliament enacted an Act called the Information Technology Act, 2000. It

received the assent of the President on the 9th June, 2000 and is effective from 17th October, 2000. This Act is based on the Resolution A/RES/51/162 adopted by the General Assembly of the United Nations on 30th January, 1997 regarding the Model Law

on Electronic Commerce earlier adopted by the United Nations Commission on International Trade Law (UNCITRAL) in its twenty-ninth session.

It was a foresight on the part of the Government of India to initiate the entire process of

enacting India’s first ever information technology legislation in the year 1997 itself.

It is significant to note that by enactment of the Information Technology Act, 2000, the

Indian Parliament provided a new legal idiom to data protection and privacy. The main

principles on data protection and privacy enumerated under the Information Technology

Act, 2000 are:

(i) defining ‘data’, ‘computer database’, ‘information’, ‘electronic form’, ‘originator’, ‘addressee’ etc.

(ii) creating civil liability if any person accesses or secures access to computer, computer system or computer network

(iii) creating criminal liability if any person accesses or secures access to computer, computer system or computer network

(iv) declaring any computer, computer system or computer network as a protected system

(v) imposing penalty for breach of confidentiality and privacy

(vi) setting up of hierarchy of regulatory authorities, namely adjudicating officers, the Cyber Regulations Appellate Tribunal etc.

Further, the Information Technology Act, 2000 defines certain key terms with respect to data protection, like access [S.2 (1)(a)], Computer [S.2 (1)(i)], Computer network [S.2 (1)(j), Computer resource [S.2 (1)(k)], Computer system [S.2 (1)(l)], Computer database

[S.43, Explanation (ii)],Data [S.2 (1)(o)], Electronic form [S.2 (1)(r)], Electronic record

[S.2 (1)(t], Information [S.2 (1)(v)], Intermediary [S.2 (1)(w)], Secure system [S.2(1)(ze)] and Security procedure [S.2 (1)(zf)].

Civil liability in case of data, computer database theft, privacy violation etc.

The Act provides a complete Chapter (Chapter IX) on cyber contraventions, i.e., section

43 (a) – (h) which cover a wide range of cyber contraventions related to unauthorised

access to computer, computer system, computer network or resources.

Section 43 of the Act covers instances such as: (a) computer trespass, violation of privacy

etc. (b) unauthorised digital copying, downloading and extraction of data, computer

database or information;. theft of data held or stored in any media, (c) unauthorised

transmission of data or programme residing within a computer, computer system or

computer network (cookies, spyware, GUID or digital profiling are not legally

permissible), (d) data loss, data corruption etc., (e) computer data/database disruption,

spamming etc., (f) denial of service attacks, data theft, fraud, forgery etc., (g)

unauthorised access to computer data/computer databases and (h) instances of data theft

(passwords, login IDs) etc.

Criminal liability in case of data, computer database theft, privacy violation etc.

The Act also provides a complete Chapter (Chapter XI) on cyber offences, i.e., sections

65-74 which cover a wide range of cyber offences, including offences related to unauthorised alteration, deletion, addition, modification, alteration, destruction, duplication or transmission of data, and computer database.

For example, section 65 [Tampering with computer source documents] of the Act is not

limited to protecting computer source code only, but it also safeguards data and computer

databases; and similarly section 66 [Hacking with Computer System] covers cyber offences related to (a) Illegal access, (b) Illegal interception, (c) Data interference, (d)

System interference, (e) Misuse of devices, etc.

Interestingly, section 72 [Penalty for breach of confidentiality and privacy] is aimed at

public (and private) authorities10, which have been granted power under the Act to secure

access to any electronic record, book, register, correspondence, information, document or

other material information. The idea behind the aforesaid section is that the person who has secured access to any such information shall not take unfair advantage of it by disclosing it to the third party without obtaining the consent of the disclosing party.

INDIAN COPYRIGHT ACT, 1957 protects “Databases” as ‘literary works’ under Section 13 (1) (a) of the Act which says that Copyright shall subsists throughout India in original literary, dramatic, musical and artistic works

Copyright Act 1957 – Section 2(6)–Literary work–Compilation of list of clients /customers developed by a person by devoting time, money, labour and skill amounts to a literary work wherein the author has a copyright.

Section 2(o) defines `literary work’ to include (among others) computer programmes, tables and compilations including computer databases.. Under section 14, literary work is one of the items wherein exclusive rights can be claimed so as to amount to copyright. Under Section 17(c) if a work is made in the course of other’s employment under a contract of service or apprenticeship it is the employer who is the first owner of the copyright therein in the absence of any agreement to the contrary.

THE PERSONAL DATA PROTECTION BILL, 2006 : The purpose of this bill is to provide protection of personal data and information of an individual collected for a particular purpose by one organization, and to prevent its usage by other organization for commercial or other purposes and entitle the individual to claim compensation or damages due to disclosure of personal data or information of any individual without his consent and for matters connected with the Act or incidental to the Act.

Section 2 (c) defines “personal data” as information or data which relate to a living individual who can be identified from that information or data whether collected by any Government or any private organization or agency.

The personal data of any person collected for a particular purpose or obtained in connection with any transaction, whether by appropriate Government or by any private organization, shall not be put to processing without the consent of the person concerned. Provided that personal data of any person may be processed for any of the following

purposes:—

(a) the prevention or detection of crime;

(b) the prosecution of offenders; and

(c) the assessment or collection of any tax or duty.

Provided further that no consent of the individual shall be required if the personal data details of the individual are obtained through sources which have been made public.

Provisions contained in this Act are relates to data to be obtained of any person collected by an organization whether government or private, shall not be disclosed to any other organization for the purposes of direct marketing or for any commercial gain and if there is a contravention to this the person shall be entitled to compensation in addition to imprisonment for a term, which may extend to three years or with fine, which may extend upto ten lakh rupees or with both if contravenes or attempts contravene or abets the contravention of any provisions.

If the person committing the contravention is a company, then , every person who, at the time the contravention was committed, was in charge of, and was responsible to, the company for the conduct of business of the company as well as the company, shall be guilty of the contravention and shall be liable to be proceeded against and punished accordingly:

Data controllers have been proposed to be appointed to look upon the matters relating to violation of the proposed Act

JUDICIAL APPRAISAL

· In the matter of Himalaya Drug Company V/s. Sumit 2006(32) PTC 112 (DEL), the Delhi High Court proceeded ex-parte against the defendant who admitted to pass a Herbal Data Base as that of plaintiff’s and violated the trade dress.
The Delhi High Court not only restrained the defendant by an order of permanent injunction from reproducing, communicating to the public, adopting, using or infringing in any other manner the plaintiff’s Copyright in the Herbal Data Base as well as each Herbal Write-up /Description that comprises the Herbal Data Base, but also awarded punitive damages to the extent of Rs. 8 lacs.

· In the recent case of, Daljit Titus, Advocate & Ors. V/s. Alfred A. Adevare & Ors. 2006(32) PTC 609 (DEL), the Delhi High Court protected the works done by the defendant in the plaintiff’s law firm as an employee of the firm for the benefit of clients of the plaintiff under their contract of service.

It observed that the defendants were free to carry on their profession, utilize the skills and information they had mentally retained, but restrained them from using the copied material of the plaintiff in which the plaintiff alone has a right. The defendants were also restrained to utilize the agreements, due diligence reports, list of clients and all such materials which came to their knowledge or have been developed during their relationship with the plaintiff.
The above case raise the issue of well drafted contracts before entering into any kind of relationship with the parties. It envisaged the need of the proper clauses to be drafted as to the dealing of Data, Computer Data Base while in relationship or at the termination of such agreements. Para 6.28 of P.Narayanan on Copyright and Industrial Design – (Third Edition) says that “Whenever an employee of a Solicitor firm drafts a document, the employer is the first owner of the Copyright document”, which means that to protect the Data, computer Data Bases of an organization, one needs to have good drafted contracts with an employee so that no dispute arises after the termination of service of an employee.

· In Burlington Home Shopping Pvt. Ltd. Vs. Rajnish Chibber, 1995 IVAD (Delhi) the highcourt of delhi observed that”Trade catalogues are generally compilations, and as such are capable of protection as literary works. On similar principles, a computer database, stored on tape, disk or by other electronic means, would also generally be a compilation and capable of protection as a literary work”

· In the recent case of Dr. Harsh Pathak vs Union of India & Ors. , a PIL filed by a lawyer in the supremecourt regarding unsolicited Phone calls, the apex court passed an interim order restricting cellular companies to make promotional calls.

CONCLUSION

The Information Technology Act, 2000 is not data or privacy protection legislation per

se. It does not lay down any specific data protection or privacy principles. The Information Technology Act, 2000 is a generic legislation, which articulates on range of

themes, like digital signatures, public key infrastructure, e-governance, cyber contraventions, cyber offences and confidentiality and privacy. It suffers from a one Act

syndrome. It would be erroneous to compare the Information Technology Act, 2000 provisions with the European Directive on Data Protection (EC/95/46), OECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Data, 1980, and the Safe Harbor principles of the US.

In fact the Information Technology Act, 2000 deals with the issue of data protection and

privacy in a piecemeal fashion. There is no an actual legal framework in the form of Data

Protection Authority, data quality and proportionality, data transparency etc. which properly addresses and covers data protection issues in accordance with the principles of the EU Directive, OECD Guidelines or Safe Harbor Principles. Accordingly, even if the new proposed amendments to the Information Technology Act, 2000 were adopted, India

would still lack a real legal framework for data protection and privacy.