The following document is Appendix A of the Report entitled “Unlocking Economic Opportunity in the South Through Local Content” which was prepared for the G8 DotForce under the direction of Peter Armstrong, chair of the Local Content and Applications Implementation Team .  The primary report and other general information about the team and its other reports is available at http://www.dotforce.org/teams/team8.html.

This report is based largely on principles of US law and, where indicated, that of India.  The information contained herein is the result of research voluntarily performed by staff and students at the Berkman Center for Internet & Society at Harvard Law School and does not represent a formal letter of opinion from attorney to client.  Local counsel should be sought prior to engaging in any OKN activity in any particular jurisdiction.

UNLOCKING ECONOMIC OPPORTUNITY IN THE SOUTH THROUGH LOCAL CONTENT

Appendix A:

POTENTIAL LIABILITY CONCERNS FOR AN
OPEN CONTENT EXCHANGE NETWORK

Public Domain Dedication
This work is dedicated to the Public Domain.

Open Economies Project
Berkman Center for Internet & Society
Harvard Law School
January, 2002

Author:
Diane Cabell
Director, Clinical Program in Cyberlaw

Contributors:
Eric Saltzman, Berkman Center Executive Director
Finbarr Livesey, Open Economies Policy Director
Rohan Kariyawasam, Berkman Fellow
Anurag K. Agarwal, HLS LLM candidate


SUMMARY OF ANALYSIS

There exists a large body of rich and valuable public domain (PD) information that has been produced by developed nations. The goal of the Open Knowledge Network (OKN) is to use peer-to-peer file sharing protocols to bring the benefits this information to southern nations in a format and language that would encourage effective use at the village level.

In addition to locating PD material from developed nations, OKN will also provide a means for developing nations to add their local knowledge and practices to this body of information. 

OKN will therefore acquire works that have been created by third parties, modify and translate it, offer it for public distribution among members of the OKN network, and encourage members (hubs and access points) to distribute it further in non-digital formats such as hard copies, radio broadcasts and community bulletin boards.  Hubs and access points might charge fees or earn revenue from advertisements included with such information. Rights to engage in such practices are generally covered by intellectual property rights (IPR) such as copyright.  Ordinarily, permission of the author must be obtained for these activities.

Public domain material may be freely used in such manner, without requiring permission of the creator of the work.  There are several difficulties that may be encountered, however.  The most difficult problem is determining whether or not a particular work in actually in the public domain.  The other difficulty is avoiding the distribution of harmful content that may give rise to liabilities under other laws such as defamation, negligence and business torts.

Determination of public domain status is difficult

“Public domain” is a legal concept and one must consult local law to determine which. Some of it is easily identified, but much is not. Most works “fall” into the public domain when their terms of protection expire.  Other material may never be capable of IPR protection (such as works by some government officials).  There are many registries for works that are protected by IPR, but very few databases of public domain material. 

To complicate matters, there is no globally harmonized intellectual property law; therefore a particular document may be public domain in one nation but still proprietary in another.  Authenticating IPR ownership of material supplied to OKN by third parties (including villagers) would be prohibitively expensive.  Nonetheless, infringement of intellectual property rights can lead to a takedown of the offending website, removal of all offending copies, serious fines for those contributing to its operation, expensive litigation and even imprisonment.  Further, some rights are inalienable; they cannot be waived or transferred away by the author and must be respected even when the author transfers away all ownership of his work.[1]

OKN could face significant IPR penalties under many laws in many countries

Not only are infringers subject to liability, those who contribute to, aid or abet them are also responsible.  Section 51 of India’s Copyright Act[2] holds accountable anyone who (ii) distributes either for the purpose of trade or to such an extent as to affect prejudicially the owner of the copyright, or (iii) by way of trade exhibits in public, or (iv) imports into India any infringing copies of the work.  A Dutch court recently ordered the peer-to-peer network, KaZaA, to stop permitting file sharing over the Internet, or face fines of up to US$40,000 a day[3] and a French court ordered Yahoo! either to block the ability of French citizens to access Nazi memorabilia being auctioned by subscribers on the Yahoo! web site or face a fine of US$13,000 per day.[4] 

OKN’s exposure increases as its ability to verify quality of information declines

The less OKN is able to verify the authenticity, accuracy and safety of any information supplied by third parties (as in the use of peer-to-peer file sharing protocols), the greater the risk it faces under laws such as those pertaining to defamation, privacy, product liability and fraud.  In some nations, the risk of IPR infringement is also heightened, but in others specific legislation has recently been enacted to protect Internet enterprises that process data in amounts too large for adequate review.

Solution is to divide responsibility among independent organizations

To significantly reduce liability risks, we recommend a structure that divides functions among separate legal entities.   Smaller units are less likely to be magnets for litigation, will engage in fewer tasks that could give rise to liability and will have fewer assets to plunder.   An OKN Syndication Service (OKSS) and a Public Knowledge Clearance Center (PKCC) should be established to perform separate functions.  Relations among these organizations and the hubs and access points would be governed by contracts for specific services. OKN itself would not be a legal entity, but simply refer to the network of OKSS subscribers. Hereafter, the term “OKN” will be used under that definition.  See CHART OF OKN LEGAL ENTITIES AND INFORMATION FLOW, below.

Open Knowledge Syndication Service (OKSS)

The first legal entity to establish is the Open Knowledge Syndication Service, which would be both an interactive service provider and a news provider.

Interactive service provider

If incorporated as an interactive service provider, OKSS will obtain special shelter against liability in many nations, including India. An interactive service provider is not defined exclusively as an access provider, but includes those who offer other forms of online services.  By providing services to the OKN network subscribers via the Internet, OKSS may qualify for such status. 

As an interactive service provider, OKSS would supply:

CHART OF OKN LEGAL ENTITIES AND INFORMATION FLOW 

(chart omitted)
News service

OKSS should also be incorporated as a news service to take advantage of additional protections accorded the Press by many nations. OKSS would receive authenticated public domain material from PKCC and pass it on to hubs via news subscription agreements, the terms of which would set all the conditions for use of the OKN network. 

Hubs can provide PD or Open Knowledge License content (OKL) to OKSS under the same agreements.  Access point personnel would serve as journalists by interviewing villagers and creating independently written accounts, rather than modifying or reproducing any documents supplied by villagers.  Editors and translators at hubs would serve as a second level of review. Hub and access point personnel would be required to dedicate their writings to the public domain or license them under OKL terms.  In most cases disclosure of patentable information will prevent filing for patent protection and possibly minimize revenue potential.  Villagers should be informed about the consequences of disclosure on patent or other rights before information is shared with access point personnel.  Descriptions of patentable material should be flagged for patent review at the hub level.  Written releases/permissions should be obtained in such cases before sharing such data is disclosed.

Public Knowledge Clearance Center (PKCC)

The second independent unit to establish is a Public Knowledge Clearance Centre (PKCC) the function of which is to identify and authenticate major PD resources for OKSS.  (OKSS will pass such material on to hubs and access points through its subscription service.)  Expanding the knowledge base of PD resources will be an extremely valuable service for non-profit users in both developing and developed nations.  The data can be supplied to OKSS exclusively (for redistribution to OKN), but might also be a useful service to provide to other parties (including academic institutions) on a fee basis.  Alternatively, the PD links/content could be posted freely at a central website.

If PKCC uses non-public domain (proprietary) material at any time, it should only be after thorough investigation into its ownership and execution of written use agreements on OKL terms.  PKCC would aid OKSS substantially by undertaking the burden of title authentication for particularly useful proprietary works and negotiating GPL or other royalty-free licenses for use by OKN subscribers. 

PKCC may also develop the license templates for use by OKSS (as itemized above), negotiate for non-commercial or open content use licenses with owners of non-PD material and advise hubs of any special use conditions that apply to such works (such as inclusion of author’s credits).  In general, however, PKCC should avoid using non-PD material. 

Instead of forming a special corporation, PKCC functions could be performed by a law firm that represents OKSS.

OKSS and PKCC should act as vendors to the network rather than as owners or managers

The recommended model proposes that OKSS and the PKCC serve as vendors to each other and/or to OKN network subscribers.  OKSS will only provide information it has received from PKCC or from hubs. Neither OKSS nor PKCC would take any partnership or ownership role in hubs or access points.  Instead, OKSS (with advice provided under contract from PKCC) would contract to supply them with protocols and educational information. The OKSS board of directors may include individuals who are associated with hubs and access points, but only in their personal capacities, and not as official representatives of those entities.

This model eliminates the need for a central controlling authority. However, consistency and standards will be maintained through the OKSS service/subscription agreements.  OKSS would require the client hubs and access points to engage in specific practices in regard to each other and to OKSS thus enforcing the legal and operational parameters of the “OKN system.”

OKSS should develop tools for access points and hubs on consent and removal of content

OKSS should design tools to delete harmful content from the OKN network as efficiently and effectively as possible.

Under this model, PKCC itself would not need to use any content supplied by the network members although it could certainly choose to include material supplied by OKSS if the material meets PKCC guidelines. OKSS would remain free to offer financial support to hubs and access points through direct grants, if desired, the conditions of which would require the recipient to follow OKN guidelines and operating procedures.

OKN has no legal status 

To best protect itself from harm caused by other OKN subscribers, each hub and access point should operate as a legally independent entity from other parts of the network (or only in small associations).  It would be advisable for them to organize as limited liability partnerships or corporations since the act of incorporation generally shields from liability the personal assets of the individuals. Each would have a separate relationship to OKSS as a subscriber to the OKSS/OKN service.  All subscribers collectively would be called the Open Content Exchange Network, but OKN itself would have no legal persona.  Neither OKSS nor PKCC would have responsibility for reviewing or approving the content of files posted by hubs, but only for ensuring that subscribers adhere to service guidelines and performance requirements.

Hubs and access points might also wish to join together to form one or more legal organizations that act as either an interactive service provider, access provider and/or as a news service in order to gain additional protection for themselves. In addition, such a collective may negotiate for bulk discounts on leased lines and peering rates, which can be passed on to other members.  However, because the rules vary widely from one nation to the next, protection of a network containing thousands of globally distributed hubs and access points will not likely receive significant protection for all of its members and will more likely simply become an attractive litigation target in nations where these special protections do not exist. Therefore, it recommended that any such consortiums be organized within national boundaries, such that all members within the same consortium are all located with the same jurisdiction and will receive the same protection.  OKSS might also act on behalf of subscribers in such negotiations.

The entire collection of hubs and access points itself will be difficult to protect under any single legal device.  Local organizations will therefore need to rely on the effectiveness of the OKSS service to supply them with safe material.  Each of them will be prohibited from introducing unsafe and infringing material to the system and if proper OKSS advice is given and taken, the amount of harmful content should be diminished.  OKSS will be subject to suit by hubs and access points in case it fails in it’s responsibilities, but it can substantially reduce the consequences by requiring OKN subscribers to settle their disputes through less expensive arbitration procedures rather than through courts.  Most nations will enforce such a service contract requirement.

OKSS should seek further legal review of the OKN proposal from local counsel

OKSS should have general business councilor review all aspects of the OKN proposal (not just the intellectual property concerns) and seek a prior review by local counsel in each location where a hub or access point is to be launched or connected. 

For a complete list of recommendations, see Section VI.  A more detailed analysis of these issues follows. 

POTENTIAL LIABILITY CONCERNS FOR AN
OPEN CONTENT EXCHANGE NETWORK

I. INTRODUCTION

Substantial legal risks arise when one uses the Internet to post material created by third parties and there is no way to eliminate them all. Although the goal of the Open Content Exchange Network (OKN) is to post only such material as may be in the public domain or available under open content licensing terms, the ability to authenticate the status of such information is quite difficult and posting material received from third parties is fraught with potential liability. This section will describe the most likely risks and recommend steps to reduce liability.

This report is based largely on principles of US law and, where indicated, that of India.  The information contained herein is the result of research voluntarily performed by staff and students at the Berkman Center for Internet & Society at Harvard Law School and does not represent a formal letter of opinion from attorney to client.  Local counsel should be sought prior to engaging in any OKN activity in any particular jurisdiction.

Advising Internet clients is an intensive project where users of the site are globally distributed. There are four major complications in determining permissible activity online: jurisdiction, archiving, infomediaries and contract enforceability. 

Jurisdiction refers to the question of which courts are entitled to make judgments in a dispute. Overlapping sovereignties occur because the web goes everywhere and a content provider may be subject to court action anywhere that its content can be downloaded.[5]  Material that is legal in the nation where the provider resides may not be legal in another territory. There are many organizations working on universal or harmonized principles regarding Internet jurisdiction, but this work is still in process.[6], [7] Meanwhile, organizations that operate on a global basis must be prepared for multiple and possibly conflicting regulation from all quarters.  For these reasons, this report does not include a worldwide analysis of liability.

Archiving is another fact of Internet life and makes it impossible to completely retract or eliminate harmful content from the Internet, which makes it difficult to limit the amount of resulting damage. Web content is immortal.[8]  For example, a website that gives incorrect instructions on the treatment for dengue fever can be copied and stored on the personal machines of hundreds or thousands of individuals, to be re-accessed months or years after it has been deleted from the content provider’s server. A system that date-stamps information enables users to easily notify the provider of errors, permits tracking of the distribution routes, and obliges partners to remove harmful data immediately will help reduce harm to all.  Posting prominent disclaimers concerning the accuracy and reliability of content will offer additional protection.

Infomediaries (information intermediaries) are the myriad organizations (mostly private, frequently unregulated) that have some kind of control over the flow of data across the Internet. Their interests do not always align with those of the content provider whose data they carry, and they may be more sensitive to pressure from complaints. A website host or access provider may have little incentive to protect the right of a single customer to post content online if it will require expensive court costs to do so; for small access services on shoestring budgets it would be financially impossible.[9]  Other infomediaries may make such decisions based on personal, political, cultural or financial values.  For example, a search engine might put non-English language material last on the response lies where few users will bother to look. Parties who have sent bulk email (including to members of large associations) only to have it unfairly labeled “spam” and blocked by private entities such as MAPS (Mail Abuse Prevention System) have had no redress other than lengthy and expensive suit in courts.[10]  

Contract enforceability is a problem for any online organization that relies on web-based agreements (as opposed to hard-copy manually signed contracts) to impose responsible practices on partners or users.  So-called “clickwraps” or “browsewraps” whereby the user indicates assent to the site owner’s terms and conditions (such as a promise not to post any defamatory messages, or a warranty that the information submitted is non-infringing) may not be enforceable in some countries, even if one could accurately authenticate the user’s identity.[11]  Wraps have upheld in the US so long as the user/consumer has a chance to review the terms of the agreement prior to indicating assent.  Currently, only China appears to refuse to enforce click-wrap agreements outright, other countries may also make enforcement difficult due to a combination of factors, including local language requirements and variations in consumer protection laws.[12]

Digital signature legislation, including the Information Technology Act in India[13], has been passed in many nations, but the terms vary and often require complex authentication technology.[14] 

Because there are so many competing legal regimes governing Internet content, there is no way to avoid all risks associated with providing information on a global basis. However, there are many technical, legal and organizational steps that a provider can take to reduce liability, as discussed below.  The Berkman Center will draft some of the legal agreements necessary to implement these recommendations.

II. THE OPEN CONTENT EXCHANGE NETWORK MODEL

Preliminary discussions concerning the OKN business model took place on November 14 and 15, 2001.  Our analysis assumes the adoption of a model with the characteristics described below.

The goal of this project is to make information available in a useful and low-cost manner to developing nations.  This will be achieved using an XML metadata standard, which will use tags that define file characteristics such as content or language, to allow for easy international sharing. 

The structure of the exchange network will be as follows: 

In order to test these recommendations, a pilot study is being conducted in the Pondicherry region of India.

There is a well-established statutory, administrative and judicial framework to safeguard intellectual property rights in India, whether they relate to patents, trademarks, copyright or industrial designs.[15]  Well-known international trademarks have been protected in India even when they were not registered in India. The Indian Trademarks Law has been extended through court decisions to service marks in addition to trademarks for goods. Computer software companies have successfully curtailed piracy through court orders. Computer databases have been protected. The courts, under the doctrine of breach of confidentiality, accorded an extensive protection of trade secrets. A right to privacy, which is not protected even in some developed countries, has been recognized in India.

III. THE PUBLIC DOMAIN and FAIR USE

Although there are many broad categories of works that fall in the public domain, it can be very difficult to locate and accurately identify most of this material or determine whether it is in the public domain on a worldwide basis. Even a willing author has difficulty donating her work to the public and must rely on so-called “fair use” and public-interest licensing schemes to make works freely available.  The law of India specifically permits authors to relinquish their rights, but this action would not extinguish any other rights that may exist in the work.  It would be an outstanding benefit to the public if public domain material could be made more easily located and accessed by the public.

A. Difficulty Identifying Public Domain Material

Unfortunately, the public domain is a legal construct, not a repository. Although there are many readily identifiable sources of public domain material (for example, copyright protection is not available for most official works prepared by United States Government employees), it is difficult to know whether most works are actually in the public domain even within one country, much less globally.  There is no single, uniform treatment on a worldwide basis, nor are there any official registries of public domain works.  Making matters more confusing, only some types of rights need to be recorded or registered in any way in order to be enforceable, therefore one cannot determine public domain material by its absence in government databases.

A particular work may be simultaneously covered by laws of many different countries under many differing terms, types and periods of protection. The same material may be in the public domain in one country, while still proprietary in another, such as a book copyrighted both in India and the US.  The former protects the work for 60 years after the death of the author but the latter protects it for 10 years longer. The duration of copyright in unpublished work, however, may be perpetual in some nations while having no protection whatsoever in others.

To further complicate matters, adaptations of a work may be protected (such as a film version of a Bible story or a hip hop rendition of an ancient folk song) even though the underlying work is in the public domain. In such cases, only the original version (biblical text, sheet music) can be freely copied although the adaptations (DVD, CD) cannot.  In some countries, certain rights of authorship are inalienable (such as the right to terminate licenses after a fixed period of time), in others certain protections are non-terminable (rights of attribution or integrity). Conflicting permissions to use works may be granted to multiple parties by the owner, yet there are no registries where such permissions are recorded.  Some intellectual property rights need not be recorded at all, such as trademarks under common law regimes like the UK and the US.  Furthermore, such works can be the subject matter of many other types of legal protections (as discussed in Section V below). 

Although registration may not be necessary for rights to be established, most jurisdictions will require that the owner take some step to put the world on notice that he is claiming rights.  The inclusion of a copyright notice on a work is no longer such a requirement in most jurisdictions, but generally the owner must first register the work with a central authority to be able to sue for infringement.  Use without notice by others prior to that registration is exempted from liability.

For purposes of this memorandum, “public domain” refers to works of information, intellectual and artistic creativity that are free from proprietary claims under copyright, patent, data protection, moral rights, trademark or trade secret law.

B. Difficulty Putting Work in the Public Domain

It has become increasingly difficult for authors to voluntarily place copyrighted works in the public domain, even when they wish to offer their work freely.  These rights often accrue automatically by operation of law without requirement of registration.   Any transfer or other grant of permission may be revocable after a fixed period of years.  Some protections (such as the moral rights of attribution and integrity) are entirely inalienable in many jurisdictions. If work is acquired directly from authors and creators (such as material presented to access points by local villagers or from sophisticated “topic experts”), OKN subscribers should be aware that in many nations it may not be legally possible to place such material in the public domain and, even where it is possible, there may be certain restrictions (such as moral rights) that will survive such a dedication.  Appropriate permissions to use works should be obtained even though these may be terminable by the author or his estate at some future time.

Material usually falls into the public domain in one of four ways:

The length of the term of protection varies with the type of right involved, which will be discussed in the sections relating to particular rights below.  Some are for a fixed period (patents usually run for 20 years), others are variable (copyright typically runs for the life of the author plus 70 years). Some run in perpetuity, such as rights in unpublished works.  The significance of the failure of formalities also varies by nation and type of protection. Formalities may include requirements of initial or term renewal registrations, or the placing of a notice on the work or goods.  For example, trademark rights begin with actual use in some nations, in others only upon registration with the government.  Copyrights can be relinquished at any time by authors in India, but certain moral rights cannot. In the United States, official reports prepared by federal employees cannot be copyrighted at all, however, this exclusion does not extend to the official reports issued by its 50 state governments. [16]

Work that is not in the public domain may still be used without penalty for certain purposes known as “fair uses.”   Fair use permissions vary dramatically from nation to nation, however, a great many of them recognize news reporting and product criticism as a fair uses of copyrights, trademarks and trade secrets.[17], [18] OKN participants should carefully research fair use protections before relying on any of them.

Recent treaties on intellectual property law, particularly the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) [19] have finally begun to move member nations toward harmonization of many basic parameters of their intellectual property laws for greater worldwide uniformity of treatment.  An unfortunate by-product of TRIPS is that, by virtue of its incorporation of Article 18 of the Berne Convention [20], it opens a ''window'' through which a work may be recouped out of the public domain to qualify it for protection under Berne or TRIPS provisions so long as protection has not expired in either the protecting country or in the country of origin.[21] 

Authors who wish to encourage free circulation are increasingly turning to vehicles such as the GNU Public License (GPL)[22] by which software owners maintain their copyright in the code, but encourage reproduction and modification of their work at low or no cost so long as the user agrees to offer any of her modifications to the public on identical terms.  GPL terms have been extended to software patents[23] and to text publication[24] but they have not yet proved popular outside the software community, nor is it clear whether they are enforceable in any or all courts.  The GPL concept is not appropriate for trademark or trade secret use. Other neighboring rights (i.e., moral rights) may constrain broader application of GPL licenses.

C. Public Domain and Fair Use in India

Intellectual property laws in India have limited terms and permit a large number of fair uses, including criticism and news reporting. There is a specific provision that allows a copyright owner to relinquish her rights in a work; however this action is subject to any other rights that may exist in the work, and therefore does not necessarily serve to place a work in the public domain.  There are also some defenses that protect so-called “innocent infringers” who have no knowledge or reason to know they are infringing another’s rights. Details of Indian intellectual property law will be covered below.


IV. INTELLECTUAL PROPERTY CONSIDERATIONS

Courts have had little problem extending existing intellectual property laws to the Internet.  There are also a growing number of new laws specifically targeting Internet activity. The most serious concern to OKN participants is determining who actually owns the rights to any works submitted by villagers or other third parties.  If the submitter is not the authentic rights owner, use of the work by any OKN participant can lead to violation of many intellectual property (and other) laws.

There is a trap in making website liability determinations. Generally, liability is diminished where the infringer is acting in good faith, does not engage in editorial functions and is without knowledge of actual infringement. Many jurisdictions have specific content-liability exemptions for Internet service providers, however, not all IPR or other laws (nor all jurisdictions) are so forgiving, and therefore strong editorial control may be the most secure way to eliminate harmful content.  It is a business judgment as to which risks of exposure one is willing to undertake.  It is strongly recommended that a more detailed comparative risk analysis be done before a final business model is chosen for the OKN project.

There are several widely adopted intellectual property rights treaties that provide for mutual protection to foreign works.  Until recently, most of these simply granted to the foreign material the same rights as it provided to locally created work. This meant each nation protected the same work under different local rules thereby contributing to the multiplicity of different terms and conditions to which a single work might be subject.[25]  As mentioned above, the recent TRIPS agreement, however, moves a step closer to global uniformity by requiring member nations to begin actual harmonization many basic parameters of their intellectual property laws.

A. Copyright

Rights.  Copyright laws pose the highest risk of intellectual property liability to the OKN participants since it will be reproducing and distributing copies of written documents.  Copyright is the body of law that protects works of literary and artistic expression, although it does not restrict use of the underlying ideas being expressed.  Protected work includes images, text, software, choreography, music and sculpture.  These rights are multiple and may be individually transferred or licensed by the owner.  They generally include the exclusive rights to do the following:

Unpublished works may be subject to different protections than published works.  Separate rules may be put in place at various governmental levels.

Limitations.   The exclusive copyrights are usually subject to a series of limitations.  Uses outside those limitations constitute infringement, and copyright infringement is ordinarily a strict liability offense.  One limitation is the duration of protection, although most current terms last close to a century.  Many nations have carved out specific “fair use” limitations that permit free use of the work for purposes such as private copying for personal, non-commercial use, classroom teaching, product comparison and news reporting.  Specific fair uses (such as the right to freely distribute copies for academic use) vary from one country to the next, however. In some jurisdictions, registration is a pre-requisite to enforcement of copyrights. In others, it is not.

Ownership.   Ownership of copyright is ordinarily in the person (the “author”) who first creates or “fixes” the work in a tangible medium of expression. Many works are jointly created and therefore jointly owned with each co-owner having independent, non-exclusive authority over the work. Some are pseudonymous. 

In many regimes, copyrights in works prepared by employees in the performance of their jobs will automatically go to the employer under work-for-hire principles.  Work that is performed by independent contractors is not necessarily deemed work-for-hire and even when qualified to be so, may require execution of a prior written to this effect. The Higher Regional Court of Berlin held that, if a freelance photographer hands over photos to a daily newspaper for printout, this does not, in principle, imply that the newspaper has obtained the right to use these photos on its website or in an Internet archive. Such use infringes the photographer's copyright under the German Copyright Act. (Higher Regional Court of Berlin, Decision of July 24, 2001).  Every hub should carefully review acquisition rules and requirements in each jurisdiction from which it is acquiring work, including work prepared by its own employees and volunteers.

Term of  Protection.   The term of copyright protection is variable because it is often tied to the author’s longevity.  The term begins, usually, at the moment the work is fixed in a tangible medium of expression (i.e., written on paper or recorded on CD with the author’s consent). For example, US and European terms run from the moment of fixation until 70 years after the death of the author; in India, the term lasts for 60 years following the author’s death.  Certain rights may not be enforceable until publication, others until registration with some government agency. 

Enforcement.   Registration of copyrights with a governmental authority is not always mandatory, however it is usually a prerequisite to enforcement. Copyright owners can sue infringers privately for injunctive relief banning further infringement (including the removal of infringing items and websites from the Internet) as well as for actual damages suffered or statutory (arbitrarily pre-determined amounts) damages. Governments can confiscate infringing copies, levy substantial fines, and impose prison terms on infringers.

Copyright and trademark infringement issues may arise as a result of infringement directly in the displayed advertisement itself or by linking through the advertisement to a site that contains infringing works. In the former case, the infringement itself is posted on the host site and the host is therefore potentially liable for copyright infringement. The case of advertisements linking to a site that contains a copyright or trademark infringement may give rise to a claim of contributory or vicarious infringement against the linking party. Contributory copyright infringement results when "one who, with knowledge of the infringing activity, induces, causes, or materially contributes to the infringing conduct of another." [26] OKN participants should agree in advance as to which party will be held liable for such infringement, and should also create a plan of action in the case that a possible infringement is brought to the attention of the host or advertiser.

Moral Rights.   Moral Rights generally refer to the rights of attribution and integrity.  In some nations they are part of the copyright law regime, in others they are considered human rights. Often, they last in perpetuity and may also be inalienable from the creator of the work, even where all other rights may be transferred away.  Attribution includes the exclusive right to claim authorship of a work, to prevent the use of one’s name as the author of any work that he or she did not create, and to prevent the use of one’s name as the author of the work that has been subject to distortion, mutilation, or other modification of the work which would be prejudicial to the author’s honour or reputation.  Integrity refers to the right to prevent any intentional distortion, mutilation, or other modification of a work, which would be prejudicial to the author’s honour or reputation and to prevent any destruction of a work of recognized stature. Moral rights apply to all types of works in some nations and in India[27], but only to works of visual art in the US.[28]  However, in some jurisdictions, such as the UK, moral rights do not apply to works made by employees in the course of employment (works made for hire) or work made for the purpose of reporting current events or published in a newspaper, magazine or similar periodical.[29] 

Special Internet Regulations.   Some nations are enacting special rules relating to online material, recognizing that many sites operate in a manner that makes it impossible to screen content supplied by third parties. 

Title II of the US Digital Millennium Copyright Act of 1998 (DMCA)[30] gives “interactive service providers” a “safe harbour” from infringement due to (a) routing; (b) caching; (c) storage; and (d) linking.  While the service provider need not monitor its subscribers' activities, it does need to implement and warn subscribers of its policy of terminating those who repeatedly display or transmit infringing material.  US courts declined to find, however, that Napster’s file-sharing protocols qualified for the safe harbor and held Napster liable for the infringing material that was exchanged through its service.[31]

To qualify for DMCA protection, an interactive service provider must meet three requirements:  (i) the service provider must either lack both actual knowledge of the infringing activity and an awareness of facts or circumstances from which infringing activity is apparent, or must promptly, upon gaining such knowledge, move to prevent the use of its service to further such infringing activity; (ii) the service provider must not receive a financial benefit directly attributable to infringing activity it has the ability to control; and (iii) the service provider must expeditiously remove material from its service on receipt of an appropriate written notice.

Title 1 of the DMCA also prohibits the circumvention of technological access control measures (a very broadly defined term), although it is irrelevant whether the material being protected by such measures is proprietary or not.[32] 

The WIPO Copyright Treaty (WCT), will come into force in 2002, has similar terms.[33]   It clarifies that the traditional right of reproduction continues to apply in the digital environment and introduces an "anti-circumvention" provision addresses the problem of hacking by requiring countries to provide adequate legal protection and effective remedies against the circumvention of technological measures, such as encryption. The treaties also require countries to prohibit the deliberate alteration or deletion of electronic "rights management information" (information that identifies a work, its author, performer or owner, and the terms and conditions for its use). WCT signatories retain flexibility in establishing exceptions or limitations to rights in the digital environment, and may either extend existing exceptions and limitations or adopt new ones, as appropriate in the circumstances.

This anti-tampering provision is echoed in the TRIPSagreement and has been or soon will be adopted in a number of jurisdictions.

Linking is a matter of growing concern to open content sites.[34]   Material on websites administered by third parties can be changed without the knowledge of the linking site. In many situations, linking has led to liability for intellectual property rights and other offenses, although most such cases involved site owners who were aware that the sites to which they linked contained infringing works.[35]  The Regional Court of Cologne recently held that a chronologically arranged collection of lyrical texts on the Internet represents a database copyrighted under the German Copyright Act, if it is individually accessible by electronic means and if its creation required considerable personal and financial investment. The Court further ruled that frame-linking to a copyrighted database without the consent of the owner of the database was an infringement of his sole right to duplicate, distribute and reproduce the database as set forth in the German Copyright Act. An implied consent of the owner of the database could not be assumed if the frame was furnished with advertisement. [36]

Framing has also been the basis of successful claims, under both copyright and business tort laws.[37] Where one website frames a page from another site, this can be considered a modification of the original page (an infringing modification of the original) and might also be an unfair trade practice if it causes loss of revenue to the original site owner by, for example, masking banner advertising or by implying an association that does not actually exist.

Copyright Law of India.  The Copyright Act, 1957 [38] was updated in 2000 to make it compatible with the provisions of the TRIPS Agreement[39].   India is signatory to a number of other intellectual property treaties as well. Protection is a matter of federal, not state, law. 

The term of protection in published work lasts for the life of the author and continues for 60 years from the beginning of the calendar year next following the year in which the author dies. For other categories of works, such as government works,the period of protection is 60 years from the date of first publication of the work[40].   The duration of copyright in unpublishedwork is perpetual.[41]

Registration of a work is not necessary to establish rights, but if a work is registered with the Register of Copyrights, it shall be prima facie evidence of the particulars entered therein.[42]

Under Sections 13 protection extends to any original, non-infringing work.[43]  Literary works include computer programs, tables and compilations such as computer databases.[44]

Section 14 enumerates the various exclusive rights of a copyright owner.  They are reproduction (including storing of a copy in any medium by electronic means), first distribution to the public, public performance or public communication, recording on film or sound, translation, adaptation (including exclusive rights to such uses of translations and adaptations), offering to sell, give or hire computer programs, sound recordings or cinematography films and actually selling, giving or leasing them.[45]

Under Section 51, works are infringed in India when, without permission of the copyright owner or Registrar of Copyright, anyone

Section 55 lists the civil penalties for infringement which include injunction relief, damages, accounts, legal and other costs and transfer to the copyright owner of all infringing copies provided that " the defendant proves that at the date of the infringement he was not aware and had no reasonable ground for believing that copyright subsisted in the work, the rights owner shall not be entitled to any remedy other than an injunction in respect of the infringement and a decree for the whole or part of the profits made by the defendant by the sale of the infringing copies as the Court may in the circumstances deem reasonable."[46]

Criminal penalties are defined in Section 63.[47]  Any person who knowingly infringes or abets the infringement of the copyright in the work or any other right conferred by the Copyright Act is punishable with imprisonment for a term, which shall not be less than six months but which may extend to three years, and with fine, which shall not be less than fifty thousand rupees but which may extend to two lakh rupees.  Where the infringement has not been made for gain on the course of trade or business the Court may, for “adequate and special reasons,” impose a lesser sentence or fine.

Section 63A provides for enhanced penalty on second or subsequent convictions, i.e. imprisonment for a term, which shall not be less than one year but which may extend to three years, and with fine, which shall not be less than one lakh rupees (Rs. 100,000) and which may extend up to two lakh rupees (Rs. 200,000). Section 63B provides that any person who knowingly makes use on a computer an infringing copy of a computer program shall be punishable with imprisonment for a term, which shall not be less than seven days but which may extend to three years, and with fine, which shall not be less than fifty thousand rupees but which may extend to two lakh rupees (Rs. 200,000).

According to the Indian Embassy, 

As regards the reported requirement that actual knowledge be proved in criminal cases, the expressions ‘knowingly infringes or abets infringement’ in Section 63 and “knowingly makes use” in Section 63Bare included to protect bona fide users…Bringing the principle of ignoratia juris reminem excusat may not be appropriate in the case of copyright as there are quite a large number of works which are in the public domain that a person can use freely, and it is natural for many to presume that such works are outside the copyright regime. Copyright is a special right created by law to protect certain rights of authors while keeping a balance of the interest of the society. It will be too much to expect an ordinary user to sit in judgment like a court of law as to every single aspect of the right which may or may not be applicable to a work before using the same. [48]

Special cells for copyright enforcement have so far been set up in 23 States and Union Territories, including Pondicherry. States have also been advised to designate a nodal officer for copyright enforcement to facilitate easy interaction by copyright industry organizations and copyright owners.[49]

Fortunately, India recognizes many fair uses.  They are specified in Section 52of the Act. They authorize use of many, but not all government works and the translations of these publications into any language.

Fair uses of which OKN participants might take advantage include:

These protections apply to such uses of translations and adaptations of works as well as to the originals.[50]  There is a compulsory license scheme in Section 32, which allows for translations of works into Indian languages upon application to the India Copyright Board.[51]

An author is permitted to relinquish his copyrights (not including moral rights) upon notice to the Copyright Office, which then publishes the notice in the Registrar’s Official Gazette.  The notice must provide details of the rights that are being relinquished so that they become a matter of public record.  See Section 21. However, the relinquishment of all or any of the rights comprised in the copyright in a work does not necessarily place the work in the public domain, since this action “shall not affect any rights subsisting in favor of any person on the date of the notice.” [52]

B. Data Protection

Data protection varies widely.  Discrete elements of data are not protected under US copyright law since they are considered merely factual statements and lacking originality of expression (a criteria for US copyright protection).  In the European Union, however, data protection is strong and is covered by special regulation.[53] Compilations of data are protected in both regimes. 

The Austria Supreme Court also found liability under unfair trade practice laws where a job recruiter placed links on its site to a database of job listings on an independent website.  The independent site had not received authorization from the complainant to post certain listings.[54] 

C. Trademark/Passing Off

Trademark owners have been very aggressive about protecting their marks online.  Domain names and meta tags, as well as site content, have been held to violate trademark law and its cousin, unfair trade practices.  OKN participants should avoid using known trademark terms, logos or images in any site content, domain name or meta tag other than for the fair use purposes as described below. Use of geographical indicators is also restricted in many nations, including India.

Rights.   Use of another’s trademark can give rise to liability under the trademark laws, passing off or unfair trade practices of most jurisdictions.  A trademark is a word, phrase, symbol or design, or combination of words, phrases, symbols or designs, which identifies and distinguishes the source of the goods or services of one party from those of others[55]. A service mark is the same as a trademark except that it identifies and distinguishes the source of a service rather than a product. A mark must be “distinctive” in the sense that consumers identify the brand with a particular manufacturer. Trademarked images can also be subject to copyright protection therefore image files that include trademark logos may give rise to additional liability under those laws.

A mark owner has the right to exclude others from using any term in commerce that is likely to confuse consumers as to the source or origin of the goods or services being offered.  Different courts have developed different criteria to evaluate “confusion.” 

Mark rights are generally limited to the geographical market and product line in which the goods are actually offered (or the jurisdiction where registered) since use on different products or in different locations is unlikely to cause consumer confusion.  Hence, the same term may be trademarked by a different entity for use in another territory, and/or a different market and/or on different goods. “MacDonald’s” may be the trademark of a flourmill in Glasgow, a painting contractor in New York, a coffee bar in New York, or a children’s clothing manufacturer in South Africa.

Famous marks have special protections in many jurisdictions. "Anti-dilution" statutes exist in many state and national jurisdictions to prevent impairing the value of a famous or well-known trademark[56].   Famous mark owners can often prevent any other commercial use of the marked term regardless of market line, product category, or consumer confusion if such use dilutes or tarnishes the distinctiveness of the mark.

Non-profit entities are, at least in the US, considered to operate in the stream of commerce for trademark purposes.  It is the actual use of the marked term that must be non-commercial to avoid infringement, regardless of the user’s corporate or tax status.  In drawing a distinction between protected non-commercial speech, and intellectual property protected commercial speech in the context of Web pages, one author has suggested that the presence of any of the following three criteria should result in a finding that the Web page is commercial, and thus subject to trademark law:

(i)the page offers goods or services for sale;
(ii)the page profits by ads on its site; or
(iii)the page advertises goods or services for sale elsewhere.[57]

Ownership.   There are two different ways to get trademark protection, either by actual use in commerce under common law or by registration under statute. In the US and the UK, the first to use the mark in the stream of commerce has priority of ownership and actual use is a condition for registration. Registration itself is not required in common law jurisdictions, so it can be difficult to determine whether use of a particular name may violate another’s mark rights. Rights may exist at various governmental levels, as well (such as US states).  In most civil code countries, on the other hand, ownership belongs to the first to register the mark and in these jurisdictions it is very easy to determine someone has prior rights to commercial use of a particular name. 

Duration.   Unlike copyrights or patents, trademark rights can last indefinitely if the owner continues to use the mark to identify its goods or services. Periodic renewal of registrations may be required.

Infringement.   Trademark infringement is the commercial use of the same or similar mark by another with respect to related goods or services which is "likely to cause confusion" with respect to actual or potential customers of the trademark owner's goods or services. Many factors are considered in determining the existence of a "likelihood of confusion," including the similarity of the marks and their commercial connotation, the similarity or relationship of the respective goods or services, the commonality of trade channels, the sophistication of purchasers, the fame and strength of the trademark owner's mark, the number and nature of similar marks in use on similar goods or services, and the existence of actual confusion.  It includes foreign language translations of the mark, different words that nonetheless convey the same meaning, and variations in spelling.  No one factor is necessarily controlling and in general infringement is evaluated on a case-by-case basis based upon the totality of circumstances[58]    

Like copyright, infringement may be contributory (as where a market owner knows that counterfeit goods are being sold on its premises).

Because the essence of a trademark is to identify the origin of a good, the owner of a mark must aggressively maintain its distinctiveness or else lose it through the principle of abandonment. Trademark owners are strongly motivated to aggressively police their marks.

Enforcement.Mark owners are responsible for enforcing their rights in many nations.  In the US, remedies include injunctive relief to prohibit infringement, the impoundment and destruction of goods bearing infringing trademarks, an infringer's profits, as well as the trademark owner's actual damages and court costs. Attorney's fees may be awarded in exceptional cases. Where the infringement involves the use of a "counterfeit" or virtual duplicate of a registered mark, statutory damages of up to $1,000,000 may be awarded along with the imposition of an award of reasonable attorney's fees unless the infringer proves extenuating circumstances. Alternatively, treble damages are available in cases involving counterfeit marks or where infringement is willful. In some jurisdictions, such as China, there may be criminal penalties for use of another’s mark on counterfeited goods.[59]

A government registration is often prima facie evidence of ownership, but failure to use the registration symbol ® with a registered mark can substantially impair a trademark owner's ability to recover damages in an infringement action.

Fair use.Most jurisdictions recognize certain fair uses of marks, but these can vary dramatically and any global site can run afoul of some trademark owner from some distant location.  Common defenses/fair uses are (a) the use, otherwise than as a mark, of the party's individual name in his own business, and (b) use which is descriptive of and used fairly and in good faith only to describe the goods or services of such party, or their geographic origin.  In nations that protect freedom of speech, fair use may include use in parodies, product criticism, and news reporting. In the US, these protections are strong. A New York State Supreme Court judge has ruled that an online news service enjoys first amendment protections accorded to newspapers, magazines, and journalists in defamation suits.  The decision comes as a result of a suit against narconews.com, which covers the Latin American drug
war.  The site was previously sued three times in Mexican court for defamation and has now been dismissed in New York.[60]  Defending one’s fair use rights can still require expensive litigation, however.[61]

Internet Applications.    ICANN, the entity that oversees the Internet’s domain name system, has a special procedure, the Uniform Domain Name Dispute Resolution Policy, which can be used to resolve domain name disputes so that the mark owner need not travel to distant courts to protect its rights.[62]  

Abusive domain name registration has been the subject of special legislation.  In November 1999, US law was amended to include as the Anti-Cybersquatting Consumer Protection Act. It imposes liability where the registration or use of a domain name has been made with ”bad faith” intent to profit from that mark.[63]

Access providers have been held liable for trademark infringement in goods sold from its users' pages, so long as it has the requisite mens rea[64].  Neither the CDA nor the DMCA protect service providers against trademark claims. 

Trademark Law of India.   The Trade and Merchandise Marks Act, 1958was updated in 1999 to add protection for famous marks.[65]

India has seen an increasing amount of litigation over domain names and metatags. The first and most significant case, Yahoo, Inc. v. Akash Arora and Netlink Internet Services (1999 PTC 201), established the pattern of analysis, which lies in passing off[66]. Plaintiff Yahoo! Inc. had registered and pending trademarks of long-standing in many nations, including India. Defendant registered the domain name “yahooindia.com” and began offering the same type services as Yahoo! Inc. (although specifically targeted to India) and even copied Yahoo website design. Defendant claimed that the Indian Trademark Act protected only goods, not services and even if so, its services were non-commercial in nature. The court also rejected Defendant’s arguments that the word “yahoo” was too generic to deserve protection and that confusion was eliminated by disclaimers of association on the Indian site.

Nearly a dozen domain cases have been heard since Yahoo!, all of them favoring the trademark owner, including the meta tag case Tata Sons Ltd. V. Bodacious Tatas (Suit 1991 of 1999) Delhi High Court, September 8, 1999. [67]

India’s ccTLD registry restricts domain registrations to particular second-level domain categories and it forbids registration of generic terms.[68]  Only domestic companies are permitted to register in the ccTLD “.co.in” and must submit evidence of incorporation and are also required to use name servers physically located in India.  Trademark complaints about .in domain registrations are handled through a mandatory resolution procedure provided by the domain registry.[69]  The provisions are similar to the US ACPA and ICANN’s UDRP.

India also recently enacted the Geographical Indications of Goods Act, 1999.[70] This is a sui generis form of protection for geographical names.  The purpose is to protect local locations as indications of the country or place of origin of that product. Typically, such a name conveys an assurance of quality and distinctiveness that is attributable to the fact of its origin.  Basmati rice and Darjeeling tea are examples.  Only groups or associations that represent the interests of all vendors of like goods in the target location may seek such protection.  Individual vendors then apply as “authorized users” of the indicator.  A vendor may register to indicate that their goods originate in the named location and receive the exclusive right to use the indicator as to those goods.  The Act only applies to agricultural goods, natural goods, handicrafts or industrial goods.  It is not clear whether industrial goods would include information services. Geographical indicators are also covered under Articles 22 to 24 of the TRIPS Agreement.

D. Patents/Industrial Designs

OKN participants are not very likely to run afoul of patent laws, which cover “processes, machines and compositions of matter.”  By providing access to copies of issued patents, OKSS would be supplying a rich source of useful information for its clients. Some nations post them in publicly accessible online databases.[71]

Posting information that describes non-patented indigenous practices is a double-edged sword.  While it works to archive and distribute useful information, it may defeat the village’s ability to patent the information by foreclosing filing options in many countries.  In the US, the inventor has a full year after publication to file for a patent, but in Europe all rights are lost if the patent application is not filed before public disclosure. This might disadvantage the local inventor in some situations (if the information happens to be valuable and appropriate subject matter for patent protection), or it might advantage the local population by ensuring, through publication as prior art, that third parties never proprietize the practice and prevent local use.  If the practice has been in common use in the village for some time, however, it is unlikely that any patent law will block continued indigenous use.

The financial impact may differ depending on the particular invention and villagers should be informed about the consequences of disclosure before it is shared posted by the access point.  For example, India patent law specifically prohibits patenting either methods of agriculture or horticulture or processes “for the medicinal, surgical, curative, prophylactic or another treatment of human beings or any process for a similar treatment of animals or plants to render them free of disease or to increase their economic value or that of their products,” therefore information of this particular kind may be at less risk.[72]   Such information may, however, be patentable in other nations but the costs of foreign patenting are excessively high. 

Another possible risk would come from carrying articles or advertisements that offer products for use or sale that infringe another’s patent rights. This may constitute contributory infringement.  Generally, contributory infringement requires actual knowledge on the part of the defendant that a right is being violated, but countries vary in this respect.

Rights.   Patent laws protect inventions and discoveries and grant to the inventor and any co-inventors a right to exclude others from making, using, and selling them. Methods, processes, machines, and compositions of matter, or any new and useful improvement thereof, are subject to protection, including methods to reproduce distinct new plant varieties.  In US courts, patents cannot protect mere ideas, suggestions, laws of nature, physical phenomena, and abstract ideas. Some specific kinds of inventions may not be protectable, such as nuclear weapons (in the US) or business methods software (in Europe). 

Limitations.   Once the patent is granted, the nature of the invention itself becomes public information (the patent document includes a description of the invention sufficient for others to recreate it).  The protection given by the patent is an inducement for the public disclosure of the discovery, which knowledge benefits the public interest. OKSS distribution of copies of issued patents will, in most jurisdictions, be an acceptable practice.

Ownership.   The inventor(s) is ordinarily the only one entitled to apply for protection of his/her discovery.  An employer may have “shop rights” to use the invention for internal purposes if it was invented by an employee in the performance of the job.  

Registration.   Patenting is most often administered at the federal level of government where the patent documents themselves are recorded in a central registry. Some of these federal registries are now online.  The term of protection generally runs approximately 20 years from the date that the patent is issued by the governmental authority.  The term “patent pending” has no legal significance in most of these countries because no patent right can exist until after the patent is granted.

Enforcement.   In many countries, the patent holder is responsible for enforcing his rights through private court action. There are statutory fines that can also be imposed by the court, but jail terms are not common.  Infringement is defined as committing any of the prohibited acts without permission of the patent owner or actively induces infringement. 

Patent Law of India.  Patent terms in India are shorter than most. Under Section 53 of the Patents Act, 1970, food, medicine and drug patents last five to seven years, all others run fourteen years.[73] The Patents (Amendment) Ordinance brings the existing patent laws into conformity with the obligations undertaken in the agreement for the establishment of the World Trade Organization TRIPS.[74]  Section 25(b) of the Patents Act, 1970 requires an inventor to file a patent application in India before the invention is made public in any country.[75]  It is important for OKN to ensure that villagers and others are warned about the consequence of such disclosure before they disclose their practices and processes to access point personnel.

E. Trade Secret

Trade secret law gives the owner of important commercial information the right to keep others from using it.  OKN participants could be held liable for distributing material that is subject to trade secret protection, but most nations will not impose any penalty in the absence of awareness that the material is proprietary. Knowledge of an organization’s agent or partner, however, may be attributed to the organization itself, which is another reason for maintaining legal firewalls between the various OKN participants.

Generally, trade secret protection extends to any information that provides the owner of the information with a competitive advantage in the marketplace, and is treated in a way that can reasonably be expected to prevent the public or competitors from learning about it, absent improper acquisition or theft.  Trade secret protection lasts for as long as the secret is kept confidential. Once a trade secret is made available to the public, trade secret protection ends.

Rights.  Trade secret/unfair trade practice laws can prevent the following groups of people from copying, using and benefiting from its trade secrets or disclosing them to others without permission. Injunctions may be obtained to prevent disclosure, or damages may be obtained through court for losses sustained from improper disclosure by people who:

Intentional theft of trade secrets can constitute a crime under the law of many nations. The most significant U.S. law dealing with trade secret theft is the Economic Espionage Act of 1996(EEA) (18 U.S.C., Sections 1831 to 1839).[77] The Act gives the U.S. Attorney General sweeping powers to prosecute any person or company involved in trade secret misappropriation.

The EEA punishes intentional stealing, copying or receiving of trade secrets "related to or included in a product that is produced for or placed in interstate commerce" (18 U.S.C. 1832). Penalties for violations are severe: Individuals may be fined up to $500,000 and corporations up to $5 million. A violator may also be sent to prison for up to ten years. If the theft is performed on behalf of a foreign government or agent, the corporate fines can double and jail time may increase to 15 years (18 U.S.C. 1831). In addition, the property used and proceeds derived from the theft can be seized and sold by the government (18 U.S.C. 1831, 1834).

The EEA applies not only to thefts that occur within the United States, but also to conduct outside the U.S. if the thief is a U.S. citizen or corporation, or if any act in furtherance of the offense occurred in the U.S. (18 U.S.C. 1838). The EEA is a federal criminal statute and is enforced by the United States Attorneys' offices located throughout the country.

Several state governments have also enacted laws making trade secret infringement a crime. For example, in California it is a crime to acquire, disclose or use trade secrets without authorization. Violators may be fined up to $5,000, sentenced to up to one year in jail, or both (Cal. Penal Code Section 499c).[78]

In India, confidentiality and trade secrets are basically protected by common law and by statute.  Section 72 of the Indian Information Technology Act provides that a person who has access to confidential information under the powers conferred to him under the Act and discloses such information can be punished with imprisonment for up to 2 years or fined up to Rs. 1 lakh or both.[79]   Comparing this provision with the ECPA, the section deals only with disclosure of confidential information and not with interception, therefore its scope is limited.

OKN participants should be warned not to obtain information in violation of these principles.  Those who discover the secret independently, that is, without using illegal means or violating agreements or state laws, are free to disclosure such material.

V. OTHER CONTENT LIABILITY ISSUES IN INDIA

As has been stated frequently, posting content to a publicly accessible website may create liability for a large number of legal harms, of which intellectual property rights infringement is but one category. Users may rely to their detriment on information that proves to be false.  Disclaimers and warnings may not be enforceable. Generally, such liability only arises when the content provider has been acting with awareness, actual intent or substantial carelessness; however, this is a general rule of thumb and may not apply in any particular circumstance.

Since the first OKN trial will be conducted in India, the remainder of this analysis will focus on India to which the OKN project might be particularly subject.[80]   A wider analysis should be conducted before the project expands outside India.

Communications Convergence Bill.   Thisbillhas just been introduced in Parliament and is under review before relevant committees.[81] It is expected to be enacted in early 2002. It repeals existing telecom and broadcasting laws and establishes an entirely new structure under a Communications Commission, which will also have authority over Internet services and content. Licenses will be required to provide most such services. OKSS, hubs and access points should determine whether or not local licenses are required for content providers.

Consumer Protection Act.   It is possible that OKSS, hubs and access points may become liable under India’s Consumer Protection Act for wrongs committed by access point personnel who charge for services.[82]  Under section 2 (1) (b) of the CPA, the complaint may be filed by almost anyone – a consumer, any voluntary consumer association, the Central Government, the State Government, or a single person on behalf of a group of persons. Thus, almost anyone can file the complaint. No fee has to be paid for filing the complaint, the presence of a lawyer is not necessary and the rules of procedure do not apply strictly in these courts (Consumer courts). The ease in filing a complaint makes it attractive for the nuisance makers to file a complaint and then have fun. The Madras High Court has held that it is permissible for the Districts Consumer Disputes Redressal Forum to entertain a complaint seeking refund and compensation, although there was an agreement between the parties to refer the matter to arbitration in case of a dispute.[83]

Content Regulation.  India’s laws on obscenity, acts against the state, incitement, etc. are far from liberal.  The distribution of obscene material electronically is specifically prohibited under Section 67of the Information Technology Act.[84]  Under Section 79, network service providers have limited protection against content posted by customers.[85]

In a pending case, a leading portal, rediff.com, was charged with violating India’s obscenity laws, since its search engine was capable of providing access to pornographic material and did not adopt any filtering technology.  Rediff.com has argued that it is not realistically possible to filter such content.  The Information Technology Act provides either of two defenses to a network service provider: (a) that he exercised due diligence in an effort to prevent the offence; or (b) that he did not have any knowledge of the offence.  For an intermediary who wishes to adopt a hands-off approach, this defense can be difficult because once informed of the possibility of the offence, one has to act, since one would then have knowledge.  The difficulty in applying this can be seen in the Rediff.com case where the management of the company would obviously have had knowledge that the search engine could be used to access pornographic sites.  A key defect of the Act is that the above defense applies only to offences under the Act and not to offenses under other laws.[86]

Website content can give rise to many different kinds of liability under both civil and criminal provisions.  Defamation (below), fraud, violation of health laws or professional licensing provisions (by practicing medicine without a license), and negligence (a general liability when one does not maintain the duty of care that may be owed to another) are some examples.  The potential for content liability may be reduced in many jurisdictions if prominent disclaimers are placed on the website that are meaningful to users, but it will not be eliminated.

Electronic Contract Enforceability.   The validity of click-wrap/browse-wrap agreements has not been tested in India.  The nation’s contract law has very liberal terms for communication of consent (even silence may equal consent) but also prohibits agreements based on “undue influence” or containing “unconscionable” terms.  Standard form contacts (such as airlines issue with tickets) have been upheld.[87]  Digital signatures are valid in India under the Information Technology Act, but only those using double-key asymmetric cryptography technology.[88]

Defamation.   Unlawful attacks on the honor and reputation of a person can invite an action in tort and/or criminal law in almost every nation. Many ethnic and racial groups may also feel attacked.  Local law on this topic should be investigated further.  Online defamation can lead to substantial damage awards since the defamatory information is spread so quickly and so widely via the Net.

Foreign Investment.   Under Indian law, a foreign company wishing to invest in or set up an Indian company would either need to obtain a specific approval or be being covered by a general permission.  The foreign investment regime has been liberalized over the years and investment in the information technology industry is permitted up to 100% without the need for approvals in most cases.  A 49% cap on foreign investment in an internet service provider (ISP) through the automatic route can be overcome by obtaining a specific approval up to 74% or if the ISP does not intend to set up an internet gateway, up to 100%, provided that in the latter case, the foreign investor must divest 26% in favor of the Indian public within 5 years if it is listed in any other country. 

Another restricted area is that of trading, where a foreign company's ability to set up a subsidiary merely to buy and sell goods or to set up for e.g., a chain store is restricted. The government has extended these restrictions to such activities conducted over the Internet.  Foreign investment is not possible at all in retail trading over the Internet and is possible in the B2B sector only if the foreign investor agrees to divest 26% stake to an Indian joint venture party or the Indian public within 5 years, if the foreign investor is listed elsewhere in the world. 

This type of restriction is seen as unrealistic for many reasons. It is often difficult to differentiate between B2B and retail trading, especially in typical co-branding and referral arrangements.  Further, it would mean that a foreign venture capitalist could not invest in a broad-based Internet portal that also has an Internet shop.  It may be noted that the restriction does not apply to companies that are engaged in manufacturing in India and that sell their goods over the Internet, or companies that are already permitted to trade in India.  Further, the restriction does not cover e-commerce support activities such as setting up of payment gateways and e-marketplaces, since these service providers do not sell products themselves but only facilitate the process.[89]

Jurisdiction.   No court of India has yet considered the question of jurisdiction over foreign-based Internet activities; however, the Information Technology Act appears to support extra-territorial application of local law in that it specifically applies its provisions to offenses committed outside India by any person.  It also permits police and government officers to enter any public place (such as a cyber café) to search and arrest without a warrant for violations of the IT Act.  This police power does not apply to private business premises, only to public places.[90]

Local Business Formalities. India may have many formalities that apply to access points, hubs, OKSS (and possibly PKCC).  These should be reviewed by India counsel for applicability. For example, appointment of a local agent for service of legal process, or registration with local police may be required.

Network Security.   India does not have a special law dealing with the duty of a website owner to protect its website and database from breaches.  It is felt that general common law standards under the law of negligence, such as the duty to take reasonable care, would apply. Efforts of e-commerce sites to develop a high level of security have been hampered by US restrictions on export of encryption technology to India, and Indian government regulations restrict the use of such technology. India's central bank, the Reserve Bank of India, has, however, made some efforts toward developing a security standard to be followed by banks.

The IT Act does deal with hacking.  Section 65 makes criminal any act that “conceals, destroys or alters or intentionally or knowingly causes another to conceal, destroy or alter any computer source code used for a computer, computer programme, computer system or computer network, when the computer source code is required to be kept or maintained by law for the time being in force.”[91] Penalties include imprisonment for up to three years, or a fine which may extend up to two lakh rupees, or both.  However it restricts criminal liability to a situation where harm is caused to the electronic records from unlawful access leading to a gain for the offender.  Hence, mere unlawful access and viewing of confidential information will not result in criminal liability.  This can only be a civil wrong remediable with a penalty of up to Rs.10 million.

Privacy.  The Constitution of 1950 does not expressly recognize the right to privacy. However, the Supreme Court first recognized in 1964 that there is a right of privacy implicit in the Constitution under Article 21, which states, “No person shall be deprived of his life or personal liberty except according to procedure established by law.”[92] Unlike the European Union, there is no general personal data protection law in India.

Section 72of the IT Act makes it an offence for a government official to violate the privacy of information received by him while exercising powers conferred on him by the Act.[93]  It is felt that this is one area where the government should consider introducing a special legislation or the industry should be proactive in enforcing an industry standard.  Leading portals have included privacy policies in their websites similar to that of well-known international websites.

Internet access providers are barred from violating the privacy rights of their subscribers by virtue of the license to operate, which they are granted by the Department of Telecommunications.[94]

Taxes.   In the recent 2001budget, the government introduced a 5% service tax on “online information and database retrieval services.”  It is unclear as of now whether this would relate only to direct access to databases (e.g., reservations, credit card authorizations, etc.) or would cover access to web-based information.  If it covers web-based information, this would be the first measure by the government to specifically tax an Internet-related transaction.  Despite the technology-neutral language used, this would in a sense go against a basic principle in the U.S. Internet Tax Freedom Act that services provided in relation to the Internet, which have no equivalent in the off-line world, would not be specifically taxed.  India tax authorities are studying the issue of taxation of remote businesses engaged in e-commerce in India, specifically whether payments made by local entities to access foreign databases (such as travel companies using foreign computer reservation systems) should be taxed as income/royalties to the foreign entity.[95]

CLIMATE FOR LITIGATION IN INDIA

Memorandum prepared by Anurag K. Agarwal
Intellectual property law practitioner in India
LL.M. degree candidate, Harvard Law School

At present the courts have a very strict view of the protection of the copyright. With a large pool of highly qualified software professionals, India’s government wants to protect the rights of software professionals of other countries so that by the doctrine of reciprocity, Indian professionals are also given the same protection in other countries. Moreover, India is a signatory of TRIPS and WTO hence India is under obligation to have strict copyright laws.

Copyright societies have been set up for different classes of works in order to more easily administer copyright licensing and revenue collection. At present there are three registered copyright societies. These are the Society for Copyright Regulations of Indian Producers of Films & Television (SCRIPT) for cinematography films, Indian Performing Rights Society Limited (IPRS) for musical works and Phonographic Performance Limited (PPL) for sound recordings. These societies, particularly the PPL and the IPRS, have been quite active in anti-piracy work. The PPL has even set up a special anti-piracy cell under a retired Director General of Police, and this cell has been working in tandem with the police.

Although concern has been expressed about the allegedly slow judicial system in India and the procedural issues involved in trial and conviction, civil proceedings against piracy have been quite effective. For instance, in 1999, the Motion Pictures Association (MPA) filed 3 civil actions against 3 Indian cable networks and obtained injunctive relief covering 45 cities and 8 million cable homes. MPA has estimated that by these injunctions alone, cable piracy has been brought down by 50%.

Due to the number of measures initiated by the government, there has been more activity in the enforcement of copyright laws in the country during the last year compared to previous years. As per the data relating to copyright offenses available with the National Crime Records Bureau, the number of copyright cases registered has gone up from 479 in 1997 to 802 in 1998. The number of persons arrested has increased from 794 in 1997 to 980 in 1998. The value of seizures has gone up from Rs.2.88 crore (28.8 million) in 1997 to Rs.7.48 crore (74.8 million) in 1998. These figures reflect the general improvement in the enforcement of the copyright law.[96]

According to colleagues who practice in India, there is a general fear of “dot.coms”. The Indian populace and the courts have an aversion (which developed after the failure of so many Internet players) to anything to do with computers. A large number of small investors were duped by these dot.coms and hence, the courts have taken a very strict view against them under the Consumer Protection Act, which encourages complaints by its consumer-friendly filing procedures.  

Trial courts there are under great stress.  The judicial officers (Judges and Magistrates) at this lowest judicial level are government servants of the province in which the court is situated. Hence, these judges do not have absolute (as compared to High Court and Supreme Court judges) financial and otherwise independence. They work often under the Damocles sword of the executive of the state, which has the power of transfer and controlling other service matters. Therefore, corruption, mal-practices and abuse of power are not uncommon. Decisions may be swayed by political, official or other pressures or because of lure of lucre or threats to cause some damage to the judge’s property or person. Adequate protection is not provided to the officers of the state judiciary. Moreover, the workload (number of cases per judge) is extremely high.  This often results in poor quality of judgments, low morale of the judicial officers and absence of real system of justice at the District level.

India’s Supreme Court and High Courts, however, are independent and command enormous respect. One interesting point of difference between the US and UK supreme courts and their Indian counterpart is that moving the Supreme Court in India for the violation of the fundamental rights is itself a fundamental right under Article 32. Therefore, any citizen can file the petition directly in the Supreme Court for the violation of the fundamental rights (given in Part III of the Constitution of India).

Under Article 226, citizens can also file a petition directly with Indian High Courts for the violation of fundamental rights and for any other purpose. The inclusion of “for any other purpose” gives the High Courts tremendous amplitude to work and the powers with the High Courts are therefore almost limitless. For the filing of such writs, a citizen needs not to go through the channel of the District Court and then the High Court. He must file it directly in the High Court.  These judicial remedies provided by the Constitution of India give a lot of scope for litigation – genuine and frivolous both. Lawyers have a nuisance value everywhere and India is no exception. A significant portion of this litigation is lawyer-generated. Quite a good number of matters are filed by the public-spirited citizens who may have no other work except filing matters in the High Courts and the Supreme Court. Many of them have real concerns and work genuinely for the benefit of the masses and for spreading the movement of civil liberties, etc. Such persons have formed groups and associations. Sometimes, they file matters against large corporations or foreign bodies having shops in India just to blackmail and make a fast buck by forcing them to cut a deal with them. These things are not uncommon. However, the Supreme Court and the High Courts are taking stern action against such individuals and groups who habitually file frivolous petitions. A heavy monetary fine is often imposed on them. Usually, such fines do not deter the so-called public-spirited persons. They keep on acting as good Samaritans, creating problems for the really creative and developing agencies. 

VI. RECOMMENDATIONS

** Templates will be provided by the Berkman Center for Internet & Society at Harvard Law School.>

News Service, Clearing Center

1. Establish the OKN Digital News Service (OKSS).  Incorporate it as an interactive service provider to obtain special protections available in many nations. By providing services to the OKN network subscribers via the Internet, OKSS may qualify for such status.  OKSS should also be incorporated as a news service to take advantage of special protections accorded such entities by many nations. All necessary local business regulations and licenses should be obtained for OKSS in each region where a hub is located.  The types of services that will be provided to subscribers include:

XML schema
System to alert/track/remove any harmful content from OKN on receipt of complaint
Guidelines on open content procedures, including advisory on possibly loss of patent or other rights upon disclosure
Guidelines on reporting and identifying original sources
Guidelines on local intellectual property and content liability regulation
Templates for interactivity/interconnection agreements with OKN network **
Templates for receiving and using content supplied by third parties **
Templates for user/TOS agreements **

2. Establish an independent entity (Public Knowledge Clearance Centre or PKCC) to identify and authenticate major public domain (PD) resources and supply them to OKSS only. (OKSS, not PKCC, will pass this information through to hubs and access points)  PKCC may also develop appropriate license templates for use by OKSS (as described above), negotiate for non-commercial or open content use licenses with owners of non-PD material and advise hubs of any special use conditions that apply to such works (such as inclusion of author’s credits).** In general, however, PKCC should avoid using non-PD material.  Instead of forming a special corporation, PKCC functions could be performed by a law firm that represents OKSS.

3. Maintain legal firewalls between OKSS, PKCC and OKN’s hubs and access points by avoiding any central OKN administration.  Relationships should be those of contractors or licensors, not of central ownership or management.  Operating terms and standards for OKN can be imposed through the legal agreements by which hubs and access points subscribe to the services provided by OKSS and PKCC.  This will reduce the value of any one entity as a target for litigation.

4. Obtain maximum insurance protection for their PKCC and OKSS activities.<

5. Form PKCC and OKSS as limited liability corporations or partnerships to protect assets and personnel as much as possible.

6. Design an open content licensing template that recognizes the fact that revenue may be generated from activities associated with use of OKSS material by various parties involved in the OKN system. **Liability would be reduced if all OKN content was distributed for free, but it would not be eliminated entirely.  In light of the need for access points and hubs to become self-supporting, permission should be granted to charge fees, not for mere provision of OKN content, but rather for values that are added to the OKN content. A list of examples of acceptable added values should be generated by PKCC.

7. PKCC should review local laws regarding all activities and adjust terms before admitting new subscribers to OKN.  Privacy policies may be required. It is unlikely that one agreement form or one legal structure will be suitable for all nations.

Hubs and Access points

8. To reduce intellectual property rights infringement, access points should never share work that has been copied from any non-PKCC source.  Instead, they should gather material in the manner of freelance field reporters who write their own original versions of the information obtained through interviews and document research. Hubs would tag, translate, modify and redistribute these reports to OKN subscribers (other hubs and access points). 

9. Hubs would have responsibility for reviewing local reports for other liability concerns such as defamation, inaccuracy and patent potential. PKCC/OKSS can provide educational services in this regard. Disclaimers as to reliability and authenticity should be prominently included on files that contain unverifiable information.

10. Villagers should be informed about the consequences of disclosure on patent or other rights before information is shared with access point personnel.  Written releases/permissions should be obtained in such cases. **

11. Field reporters and hub staff should be required to place their news reports and their modifications in the public domain (in regions where this is legally possible) or distribute them under a OKSS-approved form of open content license or (if the previous methods are not legally recognized) transfer ownership to the hub as a work-for-hire. **

12. OKSS subscriber agreements should hold each access point and hub liable for its own work, prohibit use of the network for unsolicited bulk email, require notification to others upon receipt of any complaints about content, to delete files upon notice of harm, and require each to hold others harmless for any damages resulting from submission of infringing material. **

13. Hubs should apply for mandatory translation licenses in nations where this is available.

14. Non-OKN personnel (those who are not employed by any OKN participant) should not be permitted to place files on the OKN network.

15. No material should ever be placed on the OKN network that contains a trademark or copyright notice or other notification that rights in the work belong to any third party.

16. All agreements with third parties concerning permissions to use material should be written and signed manually.  Use of any terms, domain names or meta tags that infringe another’s trademarks should be prohibited.

Protocols

17. All files should contain identification that would allow them to be tracked so that warnings about harmful content can be distributed, and damaging files located and deleted as effectively as possible.

18. Each file submitted to the OKN network should have include a date stamp in the content, so that users will be able to determine if the information is dangerously out-of-date.

19. Trademarks should never be included in tags.

India

20. If hubs and access points in India also serve as public cyber-cafes, they may be subject warrantless searches of their computer files by local police under new copyright enforcement regulations. Warrantless searches avoid having any prior judicial review of the appropriateness of the search. To ensure that a warrant (and prior review) is obtained, these entities should be incorporated as private businesses that are not available for public use.

Footnotes

[1] See, for example, the penalties in Chapters XII and XIII of India’s Copyright Act at <http://www.naukri.com/lls/copyright/section12.htm> and <http://www.naukri.com/lls/copyright/section13.htm>.

[2] India, The Copyright Act, 1957, Section 51 at <http://www.naukri.com/lls/copyright/section11.htm#51>.

[3] Jasper Koning, Dutch court cracks down on Kazaa, CNET News.com (November 29, 2001) at <http://news.cnet.com/news/0-1005-200-8022666.html>.

[4] Lori Enos, Yahoo! Ordered To Bar French from Nazi Auctions, E-Commerce Times (November 20, 2000) at <http://www.ecommercetimes.com/perl/story/5406.html>.

[5] American Bar Association’s report on "Global Jurisdiction Issues Created by the Internet" at <http://www.abanet.org/buslaw/cyber/initiatives/jurisdiction.html>. 

[6] Comments on the Draft Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters of the Hague Convention on Private International Law at <http://www.ilpf.org/groups/hague-stmt2.htm>.

[7] Articles 15 to 17, Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters at <http://europa.eu.int/eur-lex/en/lif/dat/2001/en_301R0044.html>.

[8] To see what OneWorld’s home page looked like on November 13, 1996, use the Wayback Machine at <http://www.archive.org>, which has been collecting and archiving every Web page it can for the last five years.

[9] For an example, see Frank Geary, Threat kills site mocking officials; County letter targets lampoon on Web, Las Vegas Review-Journal (November 14, 2001) at <http://www.lvrj.com/lvrj_home/2001/Nov-14-Wed-2001/news/17445313.html>.

[10] MAPS Press Releases showing number of suits filed against the Mail Abuse Prevention System, a private group of access provider, for blocking email that it considers to be spam at <http://mail-abuse.org/pressreleases/>.

[11] Farhad Manjoo, Fine Print Not Necessarily in Ink, Wired News (April 6, 2001) at  <http://www.wired.com/news/business/0,1367,42858,00.html>.

[12] Jorge Contreras & Kenneth H. Slade, The Origin of Click-Wrap: Software Shrink-Wrap Agreements (March 2000) at <http://www.haledorr.com/practices/prac_pubsdetail.asp?ID=1322111092000&amp;areaID=17&amp;TypeID>.

[13] Information Technology Act, 2000 at <http://www.stpi.soft.net/itechnology.html>.

[14] International Law & Policy Forum, An Analysis of International Electronic and Digital Signature Implementation Initiatives (September, 2000) at <http://www.ilpf.org/groups/analysis_IEDSII.htm>. 

[15] Embassy of India, Policy Statement on Intellectual Property Rights in India at <http://www.indianembassy.org/policy/ipr/ipr_2000.htm>.

[16] US courts have found that there can be no copyright in judicial opinions and legislative enactments. In 1888, the United States Supreme Court held in Banks v. Manchester (128 US 244, 253) that a private compilation of court decisions was in the public domain since judicial opinions are issued by publicly paid judges and the public has an overriding interest in free access to the law. Similarly, in 1898, Supreme Court Justice Harlan, sitting as a circuit judge in Howell v. Miller [91 F. 129 (6th Cir.)], found that copyright could not exist in statutes, even if privately printed.  However, in the recent case, Veeck v. Southern Building Code Congress International Inc. [268 F.3d 298 (5th Cir. 2001)], over a strong dissent, two judges of the U.S. Court of Appeals for the Fifth Circuit found copyright infringement where an individual posted a privately developed model building code on the Internet after the code had been adopted into law by several municipalities. Veeck has been appealed to the U.S. Supreme Court.

[17] See India, The Copyright Act, 1957, Section 39(b) at <http://www.naukri.com/lls/copyright/section8.htm#39> and Section 52(1)(b)(i) at <http://www.naukri.com/lls/copyright/section11.htm#52>.

[18] See also a recent US trade secret case Michael Bartlett, Court Rules DeCSS Posting On Web Is Protected Speech, Newsbytes (1 November 2001) at <http://www.newsbytes.com/news/01/171782.html>. 

[19] Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) at <http://www.wto.org/english/tratop_e/trips_e/t_agm0_e.htm>.

[20] Berne Convention for the Protection of Literary and Artistic Works (Paris Text 1971), Article 18 at <http://www.law.cornell.edu/treaties/berne/18.html>.

[21] See Paul Edward Geller, Zombie and Once-Dead Works: Copyright Retroactivity After the E.C. Term Directive (2000) at <http://www-rcf.usc.edu/~pgeller/ecterm.htm>.

[22] GNU Public License (GPL) at <http://www.gnu.org/copyleft/gpl.html>.

[23] Open RTLinux Patent License at <http://www.fsmlabs.com/openpatentlicense.html>.

[24] See OpenContent License at <http://opencontent.org/opl.shtml> and Open Publication License at <http://opencontent.org/openpub/>.

[25] For a list of intellectual property law treaties and their signatory members, see Intellectual Property Protection Treaties on the World Intellectual Property Organization website at <http://www.wipo.org/treaties/ip/copyright/copyright.html>.

[26] Gershwin Publishing Corp. v. Columbia Artists Mgmt.,443 F.2d 1159, 1162 (2d Cir. 1971).

[27] India, The Copyright Act, 1957, Section 57at <http://www.naukri.com/lls/copyright/section12.htm#57>.

[28] 17 USC 106A. Rights of certain authors to attribution and integrity. 

[29] M. Holderness, Moral Rights and Authors' Rights: The Keys to the Information Age,The Journal of Information, Law and Technology (27 February 1998) at <http://elj.warwick.ac.uk/jilt/infosoc/98_1hold/>

[30] Digital Millennium Copyright Act of 1998 (17 USC 1201) at <http://cyber.law.harvard.edu/openlaw/DVD/1201.html>. See also Online Copyright Infringement Liability Limitation Act (17 USC 512) at <http://www4.law.cornell.edu/uscode/17/512.html>.

[31] A&M Records, Inc. v. Napster, Inc., 54 U.S.P.Q.2d 1746 (D.C. N. Cal. 2000) at <http://www.gigalaw.com/library/am-napster-2000-05-12.html>.

[32] IST Project n° 12 278, ECLIP Summer School Readings on Digital Copyright Management Systems at <http://www.eclip.org/summerschool/2nd/readings.htm>.

[33] WIPO Copyright Treaty (WCT) at <http://www.wipo.org/eng/diplconf/distrib/94dc.htm>.

[34] Stefan Bechtold, The Link Controversy Page, at <http://www.jura.uni-tuebingen.de/~s-bes1/lcp.html>.

[35] Universal City Studios, Inc. v. Reimerdes, 111 F. Supp. 2d 294 (S.D.N.Y. 2000) at <http://www.tomwbell.com/NetLaw/Ch07/Universal.html>.

[36] Regional court Cologne, judgement from 2 May 2001 Az. 28 O 141/01 at <http://www.bonnanwalt.de/entscheidungen/LG-Koeln28O141-01.html>.

[37] Futuredontics Inc. v. Applied Anagramic Inc., 46 USPQ 2d 2005 (C.D. Calif. 1997) at <http://cyber.law.harvard.edu/property99/metatags/1998futu.html>.

[38] India, The Copyright Act, 1957 at <http://www.naukri.com/lls/copyright/cpwrt.htm>.

[39] Embassy of India Policy Statements, Intellectual Property Rights in India at <http://www.indianembassy.org/policy/ipr/ipr_2000.htm>.

[40] Copyright Act, 1957, Section 28 at <http://www.naukri.com/lls/copyright/section5.htm - 28>.

[41] Intellectual Property: Laws and Procedure in India, Section 1.04, at <http://www.singhania.com/ip/page01_02.html#1.04 Duration>.

[42] Ibid, at <http://www.singhania.com/ip/page01_02.html#1.07%20Registration>.

[43] The Copyright Act, 1957, Section 13 at <http://www.naukri.com/lls/copyright/section3.htm#13>.

[44] Ibid, Section 2(o) at <http://www.naukri.com/lls/copyright/section1.htm#literary>.

[45] Ibid, Section 14 at <http://www.naukri.com/lls/copyright/section3.htm - 14>.

[46] Ibid, Section 55 at <http://www.naukri.com/lls/copyright/section12.htm#55>.

[47] Ibid, Section 63 at <http://www.naukri.com/lls/copyright/63>.

[48] Indian Embassy at <http://www.indianembassy.org/policy/ipr/ipr_2000.htm>.

[49] Ibid, at <http://www.indianembassy.org/policy/ipr/ipr_2000.htm>.

[50] Ibid, Section 52 at <http://www.naukri.com/lls/copyright/section11.htm#52>.

[51] Ibid, Section 32 at <http://www.naukri.com/lls/copyright/section6.htm#32>.

[52] Ibid, Section 21 at <http://www.naukri.com/lls/copyright/21>.

[53] See Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases at <http://europa.eu.int/eur-lex/en/lif/dat/1996/en_396L0009.html>.

[54] Decision 4 Ob 225/00t. (jobmonitor.com), 19 December 2000, summary at <http://www.freshfields.com/practice/ipit/publications/newsletters/ip-update/IT200109.pdf>.

[55] 15 U.S.C. § 1127 online at <http://www4.law.cornell.edu/uscode/15/1127.html>.

[56] See, e.g., 15 U.S.C. 1125(c) at <http://www4.law.cornell.edu/uscode/15/1125.html>.

[57] Christopher Gatewood, Click Here: Web Links, Trademarks and the First Amendment, 5 Rich. J. L. & Technology 8 (1999) at <http://www.richmond.edu/~jolt/v5i3/gatewood.html>.

[58] See definition of infringement under US federal law at 15 USC 1125(a) at <http://www4.law.cornell.edu/uscode/15/1125.html>. For a list of factors that US courts use to determine confusion, see Bitlaw’s Trademark Infringement page at <http://www.bitlaw.com/trademark/infringe.html#factors>.

[59] Perkins Coie, Provisions of the Supreme People’s Procuratorate and Ministry of Public Security Regarding Prosecution Standards for Cases Involving Economic Crimes, Article 61 – Cases of Passing Off Registered Trademarks (Article 213, Criminal Law) at <http://www.perkinscoie.com/resource/intldocs/linkto.htm>.

[60] Mark K. Anderson, Court: Online Scribes Protected, Wired News (Dec. 11, 2001) at <http://www.wired.com/news/politics/0,1283,48996,00.html>.

[61] Associated Press, Down Jones Appeals Net Ruling, Wired News (Sep. 19, 2001) at <http://www.wired.com/news/business/0,1367,46986,00.html>.

[62] ICANN, Uniform Domain Name Dispute Resolution Policy at <http://www.icann.org/udrp/udrp.htm>.

[63] 15 USC 1125(d) at http://www4.law.cornell.edu/uscode/unframed/15/1125.html.

[64] Gucci America v. Hall & Assocs., 2001 WL 253255 (S.D.N.Y. Mar. 14) at <http://www.Loundy.com/CASES/Gucci_v_Hall.html>.

[65] India, Trade and Merchandise Marks Act, 1958 at <http://www.naukri.com/lls/tm/actndx.htm>.

[66]> See ZDNet India, Online competition with Metatags, at <http://www.zdnetindia.com/techzone/resources/security/stories/758.html>.

[67] For a review of trademark litigation in India, see Pravin Anand, WIPO Trademarks on Internet Workshop (1999) at <http://ecommerce.wipo.int/meetings/1999/papers/pdf/anand.pdf>.

[68] .IN registry policy at <http://domain.ncst.ernet.in/domreg/conditions.html>. 

[69] Indian Internet Domain Name Dispute Resolution Policy at <http://domain.ncst.ernet.in/domreg/disputepolicy.html>.

[70] India, Geographical Indications of Goods Act, 1999 at <http://www.iprlawindia.org/law/contents/Geo_Appel/Legislation/Acts/geo_indic_act_1999/geo_indic_act_1999_toc.htm>.

[71] United States Patent & Trademark Office Patent Full-Text and Full-Page Image Databases at <http://www.uspto.gov/patft/>.

[72] India, Patents Act, 1970, Chapter 2, Sections 3 (h) and (i) at <http://www.iprlawindia.org/law/contents/patents/PatentsAct1970/chapter2.html>.

[73] India, Patents Act, 1970, Section 53 at <http://www.iprlawindia.org/law/contents/patents/PatentsAct1970/chapter8.html>.

[74] India, The Patents (Amendment) Ordinance, 1994 at <http://www.naukri.com/lls/pat/ordinanc.htm>.>

[75] Patents Act, 1970, Section 25(b) at <http://www.iprlawindia.org/law/contents/patents/PatentsAct1970/chapter5.html>.

[76] See the Uniform Trade Secrets Act (UTSA) at <http://www.cerebalaw.com/utsa.htm> which is the template for most US state trade secret legislation.

[77] Economic Espionage Act of 1996. Section 101 at <http://www.aurorawdc.com/espact96.htm>.

[78] Cal. Penal Code Section 499(c) at <http://caselaw.lp.findlaw.com/cacodes/pen/484-502.9.html>.

[79] India, Information Technology Act, 2000 at <http://www.naavi.com/cyberlaws/itbill2000/ch11.html>.

[80] The general laws of India may be accessed at <http://indiacode.nic.in/> and summaries are available at <http://www.indianembassy.org/policy/ipr/ipr_2000.htm>.

[81] India, Communications Convergence Bill at <http://alfa.nic.in/bills/billsforpublicopinion/convergencebill.htm>.

[82] India, Consumer Protection Act at <http://law.indiainfo.com/consumer/consumer-act.html>.

[83] Kasi Housing and Development Ltd. Vs. M.M. Kalaiselvi - AIR 2000 Madras 90) at <http://law.indiainfo.com/consumer/forum.html>.

[84] India, Information Technology Act, 2000, Section 67 at <http://www.naavi.com/cyberlaws/itbill2000/ch11.html>.

[85] Ibid, at <http://www.naavi.com/cyberlaws/itbill2000/ch12.html>.

[86] Kochhar & Co., Internet And E-Commerce Law In India (2001) at <http://www.multilaw.com/areas_of_law/articles/e_commerce/india.htm>.

[87] Ibid.>

[88] India, Information Technology Act, 2000, Section II at <http://www.naavi.com/cyberlaws/itbill2000/>.

[89] Kochbar & Co, at n. 82, supra.

[90] Kochhar Internet & E-Commerce Law in India at <http://www.multilaw.com/areas_of_law/articles/e_commerce/india.htm>.

[91] India, Information Technology Act, 2000, Section 65 at <http://www.naavi.com/cyberlaws/itbill2000/ch11.html>.

[92] Constitution of India, Article 21 at <http://www.uni-wuerzburg.de/law/in00000_.html>.

[93] India, Information Technology Act, 2000, Section 72 at <http://www.naavi.com/cyberlaws/itbill2000/>.

[94] See Internet Access Provider sample license application form at <http://www.bnetindia.com/html/isplic.htm>.

[95] See Hindustan Times Online, Tax on online databases confounds industry, 28 February 2001 at <http://www.hindustantimes.com/nonfram/010301/detECO13.asp>.

[96] See <http://www.indianembassy.org/policy/ipr/ipr_2000.htm>.