An Analysis Of The IT Act
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Stone Age Flaws In ICE Age Laws An Analysis Of The IT Act |
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What is to be done? Should the Internet be governed? How is it to be governed? Who has the jurisdiction & whose jurisprudence should prevail? As the much awaited IT '99 Bill was passed in the Parliament, India's lackadaisical policy making and outdated legal apparatus to 'handle' on-line crimes, grievances, is only obvious. The mandate of the following lines is to identify and analyze the growing need for change and awareness of the loopholes in the Indian Cyberkanoon. IT Act's Grey Areas · The Copyright Act and intellectual property rights are not covered sufficiently The Internet has proved itself to be both the ultimate tool for intellectual property and the perfect infrastructure to facilitate the misappropriation of the same intangible capital. But before we allege so, it's crucial to stop and think if we can expect a copyright law at all in the cyber world? Consider the act of 'Browsing' on the Internet. Typically, when looking for information, the user browses many sites, perusing their contents in order to find the information sought. Ironically, under a certain copyright regime, this acts, itself, is a copyright infringement. In order to expedite download time, 'caching' is common. This cache in a browser has important copyright & legal implications. This process means that viewing a web page necessarily involves making a copy of it in the memory of the client's computer. This innocent act of copying simply for the purpose of viewing may be held contrary to the copyright law itself but it does give one an idea of how the whole subject of copyright needs reinterpretation. Not only that it cant be read in the mechanical, 'black letter' sense but that it's very objective needs reassessment at the grassroots. Indeed the act of copyright is CRUCIAL, sometimes more crucial that the copyright act itself. Perhaps the strongest argument for the intellectual property protection lies in its economic utilitarianism: without such rights, much research & creativity wold not be carried out nor would it be financed by VC's or angel investors  Position of ISP's …living on the edgeIndeed there is growing concern over copyright laws for those who derive their income from intellectual property, but the act of throwing the blame in an attempt to pin (just) someone, anyone… the ISP's and to seek damages form them is illogical. This would be a step beyond the proverbial 'shooting the messenger as a result of the message.' Holding ISP's liable for communication via their servers is tantamount to 'shooting the messenger's horse upon which he traveled.' And the law is written to just such an effect. Is it not obvious that the ISP need not prove that he was unaware of someone using his servers to transmit Illegal data? Do you expect the ISP to sit and monitor each and every connection and then like report to the police about any one visiting playboy.com? That leads me to two other points: 1. Is VSNL allowed to pass on information about their users to any one and every one including the Govt. departments? Is this not covered under the Privacy guidelines of the Act? 2. Is the Government of India right in deciding who can see what on the Internet? Why should the Government decide on whether a user can visit certain pornographic and other inflammatory sites? Is it part of the National Security program? · e-Shopping without Consumer Protection Laws… gun without a bullet A plain reading of the IT Act envisages a very basic legal infrastructure for enabling e-com, legally recognizing digital signatures etc. but does not utter a single word on consumer protection & provisions for online disputes. The general philosophy relating to online consumer issues is, "we'll cross the bridge when we come to it." Rather than waste time, effort and money on the framing of a lot of other laws and rules, do the laws relating to e-commerce and online shopping not deserve more attention? Who protects the customer incase of a Card fraud? Who protects the Merchant establishment and the Bank in case the customer declines a rightful and legal charge? Maybe the Government is focusing more on how to catch a wrong doer and punish rather than lay down rules of wrong doing. That takes me to the other point of the Department of Communication. Having an authority to search and seize and then arrest. They have authority to visit any public place for arresting a wrong doer. Does the Department, of any State or city, have any knowledge that would be required to confront and apprehend a hacker and prove their wrong doing? Are they even literate in Computers? · Whose law counts? The Consumer Guidance Society of India firmly believes that the laws governing the Internet transactions should be of the consumer's home country, to ensure familiarity with the procedures. But what if the nature of the case is such that it transgresses international bounds? The universal character of the Internet ensures this. The problem is hence compounded as its very easy for infringers to fall in entirely different locales, or to switch servers and countries in a matter of seconds. In such cases, plaintiffs would be without any recourse! At one level, in real time we need to strengthen our common law system, to expand the interpretation of the existing laws to include cyberlaws. At another level, in the virtual world, we need a different set of rules to abide by… RECENTLY ON JAAL: A Dry Spell For Policy Planning Lara's Theme Dotcom Bubble Gum: Burst Or Bust Inside A VIP Cell A To Do About Dos A Dress Code For Klintonji Shamit Khemka enjoys the dubious distinction of being India's first-ever "cyber criminal" since he was arrested by the Calcutta Poice in 1999 in a case that is ongoing. Khemka is primarily a web consultant. SEND US YOUR FEEDBACK ABOUT THIS ARTICLE: |
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