Month: November 2020

By: Yamini Daga

INTRODUCTION

Ever since now litigation has been the most used kind of system for the resolution of the disputes. Though nowadays quite many ways are available through which we can seek the resolution of the disputes like Arbitration, Mediation, Litigation, etc. Then also it is difficult for people to decide that which kind of method they want to opt in. And through time all these methods are emerging in their own fields and ways though litigation are believed to be the oldest form and most opted way. As through litigation people go to the court to seek justice and follow the same age old process.

The Arbitration is also one of a kind of dispute resolution process where the parties privately resolve their dispute as when the party faces a dispute in their agreement they seek the help of the arbitrator. Arbitrator is considered as a third party who listen to both the sides of the party and in return try to resolve their dispute by giving their decision in the form of arbitral award. This is the method where party try to resolve their disputes outside of the courtroom which seems less complex then the proper litigation process as less paperwork is required and experienced person are appointed as an Arbitrator.

Mediation is also a part of the dispute resolution process though in India there are no particular laws related to the mediation at present, but it is still opted by many parties though the decision given by a mediator is not binding in nature unlike the arbitral award which has the same binding authority like the decree passed in the court. In the process of mediation, there is a third party who helps in resolving the dispute by guiding them into the right direction through an informal meeting among the parties to the agreement.

And among all of the above mentioned few methods, arbitration has gained more preference over the age old court systems and the informal meetings with the mediator among the financial sector because of the globalization. As of nowadays people don’t have enough time to go to the court to seek remedy or justice they seek a process which is less complex and which is less time consuming. Thus the emergence of Arbitration is rising in the financial sector too.

 

 

ADVANTAGES THAT LED TO WIDENING OF ARBITRATION IN FINANCIAL SECTOR:

Firstly, the procedure of arbitration nowadays require the element of confidentiality. Like whatever is being going on the meetings are not supposed to be seen into the limelight unlike happening in the courtrooms. As there are many mergers & acquisitions cases are coming forward because of the globalization. It is a delicate situation as the sensitive information of the companies can be leaked and be used the competitors to gain an upper hand in the market and use that against the parties of arbitration. Therefore arbitration is a process where the third person who is the decision maker or the arbitrator are bound to maintain the secrecy about the case as they are part of contract to maintain the confidentiality about the parties or about the case.

Secondly, the kind of expertise which is being needed by the arbitrator generally is being lacked by the courts. The Institutional Arbitration have a well-qualified arbitrators with the specific knowledge regarding the subject matter, which in return makes it easier for the parties to seek the justice or solution to their argument.

Additionally, the proceedings of arbitration are generally custom made which provides the level of convenience to the parties by suiting the requirements laid down by the parties and applicability of the arbitral award is easier as compared to the decree or judgment of any court.

 

CUSTOM MADE SOLUTIONS[1]:

As we know, Arbitration is a process which is custom made as in the way it gives option to the parties to decide that how, when, where and in which manner they want to proceed further in the process of arbitration. It provides freedom to parties to decide their method unlike the age old court systems.

• Parties are free to decide the seat of arbitration, like parties can decide that at which place they would like to hold the meetings and where the whole procedure should take place can be completely decided by the parties. Basically the place of arbitration is decided at the convenience of the parties.
• Parties are free to determine the way of procedure or procedural rules, the procedural rules are to be decided by the parties in the agreement and if they fails to conclude at a mutual decision than the procedure is being set by the arbitrator themselves.
• Parties are free to determine the language for arbitration, the language in which they want to hold their proceedings during the process of arbitration.
• Parties are free to select their arbitrators, parties are free to choose an arbitral institution of their choice like by whom they want their case to be taken care of and the qualifications required by the arbitrator chosen by the parties can also be specified by the party.

 

 GUIDELINES THAT LED TO THE GROWTH OF ARBITRATION IN THE FINANCIAL SECTOR[2]

1. THE ISDA ARBITRATION GUIDE

The International Swaps & Derivatives Association (ISDA) in the year of 2013 September issued a guide relating to how one can use arbitration in ISDA Master Agreement. Earlier it included sample clause in the agreement, later on an expanded range of model clauses were introduced around the year 2018 for huge number of usage of institutional arbitration all over the world.

 

1. P.R.I.M.E. FINANCE RULES

When courts were not able to deal with the nexus disputes arose from the financial sector thus this resulted in the creation of international finance center which is known as P.R.I.M.E. Finance. This deals with the cases related to ADR and in return provides resolution by medium if mediation, arbitration and other disputes resolving services. They have their own rules and clauses which was released with this center on 16^th January 2012, situated at Hague. The reason behind opening this center was to fulfill the need of arbitration process required in the financial sectors. All the provisions made under this has only one aim that was to encourage the use of arbitration or law in the financial markets also and to provide justice to people who suffered or went through the wrongdoing or scam of others in this area.

 

• THE ICC COMMISSION REPORT

This report was prepared after conversing with at least more than or about 50 financial institutions around the globe and banking counsels or sectors with various policies, awards from minimum about 13 arbitral institutions were also being examined while preparing this particular report.

This report speaks about arbitration that is being performed in the regulatory method, in international finances matters, the disputes between the banking sectors, disputes relating to trade finances, etc. and quite huge growth sectors of arbitration were also recognized in this report.

This report turns out to be were helpful in determining the rise of financial institutional arbitrations among the world by classifying the types of disputes and by recognizing the strength of arbitration process too.

 

1. RECENT PROCEDURES

Previously the main purpose behind referring to the national courts over the process of arbitration was to assure speedy resolution of disputes via the judgment given in the format of summary elsewhere, in the process of arbitration the arbitrators are bound by their duty that they have to provide equal, fair and full opportunities to the respective parties of the agreement to set out their cases.

Nonetheless this thought process has been changed now, the institutional arbitration centers around the globe like the Singapore International Arbitration Center (SIAC), the Hong Kong International Arbitration Center (HKIAC), the International Chamber of Commerce (ICC) and many other institutions now provide the summary disposal of the disputes just like old court system which makes the process of arbitration more applicable option.

RECOGNIZED LIMITATIONS OF ARBITRATION

Though the process of arbitration is gaining its pace and being more frequently used method for resolving dispute in the financial market or sector, there are still some justifications that why sometimes this method of arbitration can be avoided. Like in few cases like the criminal cases arbitration is not possible as because these issues are not arbitrable in nature, as the third person can resolve the dispute where the parties to the agreement enter into an argument not where a person committed a crime and being guilty of murder or anything as those cases needed proper justice with the relevant punishments prescribed under the law.

 

The reason why people opt arbitration may be because of the myth that arbitration process are cost effective process. The Ad-hoc method of arbitration is precisely cheaper and affordable but it lacks experience and some required qualifications too that are being needed by the parties but the institutional arbitration is an expensive method.  As in the financial matters the parties sometimes doesn’t belong to same country which means a matter of cross border agreements are usually being held by the institutional arbitration centers, and it does cost a huge amount of money as the expenditure of procedure and transportation is expensive in nature. The arbitrator might also belong to a different country than any of the party to the agreement which make way for delay in the coordination between the parties to the agreement and the appointed arbitrator which ends up resulting in slow remedies.

 

CONCLUSION

As the P.R.I.M.E. Finance Rules, the ICC report and other initiatives are being encouraged and set as a means for resolution of disputes by the process of arbitration is being more frequently being recognized by the financial institutions or sectors.

The process of arbitration is most favorable as compared to the other methods of ADR and the age old system of litigation. Though there are many advantages and disadvantages of the process of arbitration but it will still be the most favorable option to be considered for resolving the disputes in the financial sector and the demand for arbitration will grow higher only in the near future too.

 

 

 

[1] Allen & Overy, The rise and rise of Arbitration in Banking and Finance Disputes, (2018, 9^th February), http://www.allenovery.com/en-gb/global/news-and-insights/publications/the-rise-and-rise-of-arbitration-in-banking-and-finance-disputes

 

[2] Shreya Shrivastava and Sachin Bhatnagar, The Rise of Arbitration in the Financial Sector, (April 11,2020), https://lawcorner.in/the-rise-of-arbitration-in-the-financial-sector/

 

By: Ilakkiya Kamaraj

Introduction:

Technology as rapidly developed in the following decades. The invention of smart phones and the internet has made the lives of people much easier in this fast-moving world. But as once said by the great scientist Albert Einstein, “Technological progress is like an axe in the hands of a pathological criminal”. Though technological development acts as an advantage it also gives room for the criminals to come up with different types of cybercrimes. The computer-related crime rates relating to online theft, fraud, child pornography have been increased rapidly. Digital forensics helps to identify these crimes and put these activities in control. This paper concentrates on defining about the digital forensic, the growth of cyber crime and how it is controlled by digital forensics, the role of digital forensic in law and the acts taken by the Indian Government to control cyber crimes through digital forensics.

Digital forensics:

The process of identifying, preserving, extracting and documenting the computer shreds of evidence is referred to as digital forensics or digital forensics science. In short digital forensics means recovering data and the investigation of computer-related crimes or any other digital device. Digital forensic is a very important branch and it is equivalent to performing autopsy in crime scene. Digital forensics can be used to scrutinize all those devices that can store digital data. Digital devices include server, cell phones, computer and network. Most complicated digital-related cases can be solved through the best techniques of digital forensics.

Computer-related crimes were into practice from the year 1970’s itself. This crime was dealt with the existing laws. Later in the year 1915 scientific studies was used to do criminal investigations. But as there was vast technological growth over the decades the crime rate relating to technology also increased drastically. Crimes like happy slapping, cyber bullying, online theft and online predators, child pornography as became very common. Subsequently, many acts were also passed to keep a check on these crime rates. Usually, the forensic investigator uses several techniques to investigate which includes forensic data analysis, disk forensics, network forensics, wireless forensic, email forensic, mobile device forensics, database forensics, memory forensics and malware forensics.

Branches in digital forensics:

As digital devices include not only computer and extend to a mobile device, network, flash drives etc., Retrieving data from these devices is also necessary.

• Computer forensics means retrieving data from computer and static memory like USB and embedded system.
• To study the forensic database and their metadata one of the digital forensic branch called database forensics is used.
• Analyzing and monitoring information and evidence from computer network either local or WAN is known as network forensics.
• To analyze the pattern of fraudulent activities in the financial crime and to examine the structured data the forensic data analysis can be used.
• Mobile forensics is also a branch in digital forensics. Recovering digital evidence like SMS or email from a mobile device is known as mobile forensics. The inbuilt communication system like GSM differentiates mobile forensics from computer forensics.

Digital forensics in law:

Digital forensics is applied in various sectors and private investigation. Both national and international legislation covers digital media. But it plays a dominant role in the field of law. This is because the Court of Law uses the pieces of evidence collected through investigation. This evidence is concerned with civil law or criminal law but habitually it is related to the criminal law. Digital forensics is also being used widely in the cases of intellectual property theft, employment disputes, bankruptcy investigation, fraud investigations etc., in recent years. Court of Law:

The evidence collected through investigations is used to uphold or decline a conjecture before the Court. These evidences are of different types which include real evidence, direct evidence, collaborative evidence, hearsay and circumstantial evidence. The Court prefers evidence to be more accurate, relevant and convincing. The collected evidence should be more vital so that its integrity is not questioned. In the cases involving IT secondary evidence documents are considered. Who, when and where the investigation was handled are some common elements concerned with evidence collecting.

Merits of digital forensics in law:

• Digital forensics can be used as evidence in the Court of Law. With the evidence collected the identification of the culprit becomes much easier.
• Evidence can be extracted even from the deleted files and partitions through data acquisition and duplication. It helps the investigator in recovering and preserving digital devices related materials.
• Designing procedures make sure that the corruption of digital evidence is under control.
• Identifying any malicious activity on the victim can be done very easily.
• Preserving the evidence can be done for future references.

Steps involved in investigating process:

The person who is collecting evidence is known as a forensic investigator. An investigator while collecting evidence should make sure that the collected evidence is withstanding any legal proceedings. As we discussed earlier digital forensics is all about identifying, acquiring, preserving, analyzing and documenting of digital data. The following steps are followed by the forensic investigators to collect evidence which can be accomplished by the Court.

1. Identifying:

The first and foremost step in collecting evidence is identification. The scope of the action must be identified before beginning any form of examination in the area of digital forensics. The process of searching and detecting digital evidence is done here. This process also includes what evidence is presented along with where and how it is stored. All the evidence used in the perpetration of crime must be examined by the digital evidence first responder.

In Krenar Lusha case in the year 2009 in the UK, in the investigation process, it came to know that Krenar has downloaded a manual of 4300gm to make explosives[1].

2. Acquiring:

The process of collecting evidence is known as acquisition. These evidences are collected from electronic media like personal computers, PDAs, mobile phones etc., Investigators perform acquisition of data through the following four methods, disk to disk copy, disk to image file , logical disk to a disk file, sparse data copy of a file or folder.

3. Preservation:

To prevent digital evidence from being changed or altering, the data should be isolated and should be preserved in a secured physical site. Preservation of digital evidence helps to reduce tampering of evidence. Criminal cases should be examined through the law imposed personnel for the reason for the preservation of evidence. The company officer performs this examination in civil cases.

4. Analyzing:

Numerous reiteration of analysis takes place to support a crime theory. Based on the evidence found by the investigators a conclusion will be derived by reconstructing the events.

5. Documenting:

Documenting is the key concept of digital forensics. Recreating of the crime scene is done in this process by documenting the crime scene in proper documentation. Photography, screen scene mapping and sketching can be done in documenting the crime scene for better understanding. At last, the collected documentation will be summarized and explained.

Many cases have been solved with the digital forensic process such as Matt baker case, larry Jo Thomas case, Rose Comptown case, Mikayla Munn case etc.,

Cybercrime:

Cybercrime is a computer-related criminal activity. It also includes other digital devices. Electronic evidence is defined as any information of probative value in electronic form, computer evidence, digital audio and video, cell phones, a digital fax machine that are stored or transmitted[2]. The cybercrime act is not only done by individuals, it is done through organizations too. Cybercrime includes theft of corporate data, financial data, email or internet fraud, invasion of privacy, cyber extortion, phishing, ransomware attacks, hacking, cyberespionage, spamming, cyberstalking etc., These crimes are identified with the help of digital forensics. Under the Information Technology Act, 4231 cybercrimes were recorded according to the National Crimes Record Bureau between the years 2009 to 2011.

Steps taken by the Indian Government:

To keep a check in the crime rate of digital-related crimes the Indian Government as enacted many acts which enables digital forensic to perform its duties with certain rights.

• Under section 3 of the Evidence Act, 1872 the term ‘evidence’ was amended to ‘electronic evidence’ that can be accepted as evidence in the Court of Law[3].
• In the case of Sanjay Kumar v State of Haryana[4], the appellant-accused was convicted under section 420, 426, 468, 471 of IPC and for Section 65 and 66 of Information and Technology Act, 2000 for tampering with computer sources document.
• The respondents were punishable under section 67 of the Information Technology Act, 2000 and Section 6 of Indecent Representation of Women’s Act, 1968[5].
• It was held that section 43(g) of the IT Act, 2000 is declared void which was invoked by the police[6].
• In the case of SMC Pneumatics Pvt. Ltd .v. Jogesh Kwatra[7], the Delhi Court passed an important ex- parte injunction in India’s first defamation case assuming jurisdiction over the case over the matter where there was defamation passed through e-mails affecting the Corporate company’s reputation.

Conclusion:

Thus digital forensics acts as a primary source to help in preventing cybercrimes by detecting it and acting as evidence in the Court of Law. Hence it plays a major role in the law field. It helps to identify cybercriminals and lead to punish them. It also leads other companies and organizations to protect their important information. There is no doubt that the improvement in digital technologies will increase further. Thus a well thought out strategy in digital forensics helps to prevent cybercrimes in future.

 

 

 

[1] Man Jailed Over Suicide Bomb Book, BBC NEWS, December 15, 2009, http://news.bbc.co.uk/2/hi/uk_news/england/derbyshire/8414527.stm.

[2] The Information Technology (Amendment) Act, 2008, Sec 70(a).

[3] The Indian Evidence Act, 1872, sec 3.

[4] CRR No. 65 of 2013.

[5] Fatima Riswana v State Rep., (2005) 1 S.C.C. 582.

[6] Sekar v The Principle General Manager, W.P No. 10208 of 2005.

[7] CS No. 1279 of 2001.

By: Gaurav Patankar

Introduction:

Ethical hacking in short means organization hires a certified person for hacking their own networks, systems and technologies to discover vulnerabilities and then create patches or security measures. This ensures that there will be no attack from outside which can cause data leakage, systems get compromised and so on. Hacking is ethical when the hackers are hired for particular tasks by permission of the System Owner. The ISMS (Information Security Management System) is used in companies where employees ensure that they have their information secured. They have many policies included in ISMS. The organizations take care of their Information Security by conducting ISMS audits internally or getting it done from vendors. The ISO 27001 stipulates the measures to take care of Cyber Security. Also, there is other certification named SOC. It contains two types – SOC1 and SOC2. SOC1 Certification is for finance system. SOC2 Certification is for Information Security Management System. The other requirement in today’s world is VAPT i.e. Vulnerability Assessment and Penetration Testing.

Ethical Hacking:

Hacking was not a wrongdoing when genuine hacking was connected with contemplating programming dialects and PC frameworks with the expectation of making new developments. It shouldn’t be viewed as wrongdoing if it is lawful, approved, and adequate. To start with, hacking was viewed as a type of fiddling. It was a procedure that included making changes to something to create something new. Notwithstanding individuals’ observation and inspiration about hacking have changed throughout the years, at first, programmers were individuals who sought to find alternative solutions to problems on their PCs. These arrangements and exercises realized advancement and mechanical forward leaps. Programmers were liable for pretty much every development, innovation, and mechanical achievement. They were answerable for the development of PCs and even the World Wide Web.

These exercises don’t violate laws since genuine programmers’ line up with the code of behaviours and guidelines. The inspiration of programmers was basically about remodelling existing project codes and making them increasingly proficient. Thus, not all types of hacking are illicit. For example, you own a car, you have lost ignition key, you try to start the engine by inserting other keys or just pulling out switch wires and connecting them directly to start ignition. Here, intention is not of theft but of trying other solutions.

In simple words, when you are dealing with software and information of your own PC or with PC of other with his/her consent and approval to find new solutions or new gateways, it is ethical hacking. But if you are handling PC or website or devices without permission of the owner and trying unauthorized to extract information or to avail utilities of the system (like withdrawing money from ATM using clone card or hacking pin) it is a crime.

One could likewise compare some hacking procedures for downloading. The web has billions of clients getting to it routinely. There are billions of PCs and systems associated with the web. There is individual online access to a great many sites and a large number of programming.

Everybody online appears to be occupied with one type of downloading or the other. Some type of downloading has been considered as illicit yet that doesn’t imply that downloading ought to be viewed as a wrongdoing. Individuals everywhere throughout the world visit google.com consistently scanning for data. On the off chance that data gathering was wrongdoing, Google would not be in presence today.

Not all type of hacking is violations because not all cases are destructive.  Moral hacking should not to be viewed as wrongdoing since it isn’t hostile. It is completed by moral programmers that don’t utilize their hacking aptitudes for damaging, hostile or destructive purposes. Or maybe they utilize it for cautious purposes like precautions taken by Government or Administration for prevention of crimes or for study of modus operandi of cybercrime. Such programmers are known as white caps. They are not quite the same as dark caps, green caps, blue caps, self-destruction programmers, and content youngsters who are occupied with vindictive assaults. Instead of utilizing their hacking mastery for underhand purposes, they use it to ensure frameworks and clients. They are proficient and moral programmers.

The red cap programmers utilize their hacking aptitudes for rendering consultancy and administration, for example, infiltration tests and weakness evaluations. They are like white cap programmers. They shut down the exercises of dark caps or malignant programmers. Ethical hacking ought not to be viewed as wrongdoing. Moreover moral hacking exercises do exclude unlawful procedures, for example, illicit benefit heightening, unapproved assaulting, illicit extraction of information and unapproved covering track.

Day by day increasing attacks on networks compels organization to make their network secured. They have to remain updated with network security and keep on checking whether network is secured from the attackers. The organizations get themselves ISO certified to ensure about security measures taken from their side are absolute as per norms.

Cyber Security:

Cyber security or information technology security are the techniques of protecting computers, networks, programs and data from unauthorized access or attacks that are aimed for exploitation.

The elements required for organization to ensure the Cyber Security are: ^[1]

1. Application Security
2. Information Security
3. Disaster Recovery
4. Network Security
5. Endpoint Security
6. Data Security
7. Identity Management
8. Database and Infrastructure Security
9. Cloud Security
10. Mobile Security

To ensure that all these elements are in order, the organizations need to get the systems certified from authorised bodies. They need to do compliance of their Information Security System. There are certifications as ISO 27001:2013, SOC1, SOC2 and other. Cyber Security is about ensuring CIA (Confidentiality, Integrity and Availability) of information assets. SOC1 certification is mainly for financial domains and SOC2 certification covers security, availability, processing integrity, confidentiality of the information and privacy of personal information.

These are common types of cyber threats:

• Malware
• Ransomware
• Phishing Attacks
• Social engineering
• Advance persistent threat

The pandemic hitting all over the world has evolved chances of occurring cyber threats over the internet to many organisations and individuals as well. These cyber threats include financial losses to company or individual, loss of information by malware or ransomware attacks, etc. People need to remain alert about phishing emails. They must keep their antivirus and machines updated with patches and need to take care about the threats turning up over the internet. Organisation must also ensure that their network is secured from cyber threats.

Application Security:

The application security means to check that applications are running in secured way as required. There are multiple weaknesses in application, viz. Common Vulnerabilities and Exposures (CVEs), SQL injections, plain text authentications, etc. This is a vast subject and cannot be covered in brief.

Information Security:

Information security, sometimes abbreviated to infosec, is a set of practices intended to keep data secure from unauthorized access or alterations, both when it’s being stored and when it’s being transmitted from one machine or physical location to another. ^[2]

It works on three principles:

• Confidentiality
• Integrity
• Availability

The CIA is the main ingredient of Information Security. These are carried out in all the organisations. They have ISMS policies in role for covering the CIA. It helps organisation to be safe.

Disaster Recovery:

 It is a process in which the organisation remains ready for any disaster taking place. Disaster can be any, viz. natural calamity, fire, cyber-attacks etc. The Disaster Recovery includes analysing risk assessment, establishing priorities and planning strategies to recover in case of any disaster.

Network Security:

 The components for Network Security are:

1. Antivirus
2. Hardware and Software Firewall
3. IPS (Intrusion Prevention System)
4. VPN (Virtual Private networks)

These components keep the network secured and free from the cyber threats.

Cloud Security:

 Cloud security is a set of control-based safeguards and technology protection designed to protect resources stored online from leakage, theft, or data loss. ^[3]

The main security risks in cloud are:

• Data leakage
• Unauthorized access
• Access rights and permissions
• Malicious attacks (DOS, DDoS or malware)

The key security strategies are:

• Encryption
• Identity and access management (IAM)
• Firewall
• Security Rules
• Backups

Conclusion:–

The complexity of internet world and ever expanding cyber threats make it compulsory for every organisation to be vigilant and proactive. There are very few personnel conversant with this branch of knowledge and skills. Hence, this field also can be attractive option for the persons seeking challenging employment or freelance profession. The above discussion and information makes it clear that in the modern world scenario no organisation can do without Ethical Hacking and Cyber Security.

 

 

_______________________________________________________________________________

Resources:–

1. https://digitalguardian.com/
2. https://www.csoonline.com/
3. https://phoenixnap.com/

 

By: Vaishali Kohli

At first glance, we may find the idea of Artificial Intelligence and law very unlikely since both the fields are on the opposite sides of the poles but the actual truth is far from it; Artificial Intelligence is transforming the legal profession in many ways. On a basic level, the aim is to develop and find ways to reduce, manage and execute laborious tasks which would otherwise require human inputs.  IBM Watson powered called ROSS is the world’s first AI lawyer who solves research questions by mining data and interpreting trends and patterns.  If we talk about India, then most of the lawyers and the law firms are still little hesitant, but Cyril Amarchand Mangaldas in 2017 became the first Indian firm to deploy software that uses AI named Kira to identify, examine and separate the provisions and other data from legal documents with a high level of accuracy.

APPLICATIONS OF ARTIFICIAL INTELLIGENCE IN LEGAL SERVICES

There is no doubt that AI has started impacting the legal spheres. Some of the applications that Law firms have found with AI are as follows:

1. Document discovery and review

Computes have the ability to use the Natural Language Programming (NLP) and other AI tools which allows the understanding of thousands of documents and go through case files and legal briefs in a snap. If this is applied widely, it is quite capable of bringing a revolution in the working of legal sectors. In fact, the famous investment Banking Firm JPMorgan announced COiN for Contract Intelligence in 2017, a program which saves up to 36,000 hours of lawyers time every year by interpreting commercial- loan agreements. A technology developed by Ross Intelligence helps lawyers to find cases and second material using NLP. Some of the firms have adopted AI software that helps to analyse all the documents and then flag the ones that are deemed as relevant.

2. Predicting Legal outcomes

AI has some remarkable abilities like storing years’ worth of legal data which could actually help to tell the lawyers of their chances of winning relevant cases. It can able to handle a lot of tedious tasks because of which lawyers can spend more time on analysis, counselling and negotiations, even court visits. With the use of AI, legal counsels are able to answer questions relating to the future of the case because of the ability of AI of analysing data which helps to make predictions about the outcomes of the legal proceedings better than humans.

3. Due Diligence

Due Diligence is a hectic work; the legal professionals are required to perform background checks and uncover information regarding their clients. These facts are then evaluated for better decision making to support the case. It is a tedious task, and because of its comprehensiveness, there is a chance of human error. AI makes the process more efficient and accurate by the elimination of manual errors and providing a better experience for their clients as well.

4. Contract Review and Management

Law firms review contracts of their clients to identify the risks and issues to avoid any negative impact. AI can and is being used for this purpose which is quicker and with fewer human errors. For example – Kira Systems is a popular tool used by popular companies like Deloitte to review their contracts. iManage RAVN is another such tool, and it increases the effectiveness of an organisation which in turns increases the profitability.

5. Intellectual property

AI has such tools which can help with various tasks of IP field like search and registration of a trademark, Patents, Copyright, etc.

6. Electronic Billing

The AI software can actually help the lawyers and the law firms in preparing the invoices for their clients according to work done by them. It is an accurate billing which helps both the lawyers and the clients.

ARTIFICIAL INTELLIGENCE AND INTELLECTUAL PROPERTY RIGHTS

The use of AI will change the area of intellectual property rights like trademark and the patent law. These machines are growing creative, a result of which has resulted in a transformation in the invention process in ways not easily accommodated with the present system.

• COPYRIGHT AND ARTIFICIAL INTELLIGENCE

Copyright is a legal right which granted to the owner of an original work which in turn allows him/her, the exclusive rights for its use and distribution. Copyright protects the idea and nothing more, and generally, it includes fulfilment of two conditions, the first being that the works should be in tangible form and the second being that it should be original.  Since the creation of literary works is one of the areas where AI is applicable, the study of copyright becomes relevant. The introduction of AI and its development have resulted in some challenges in the world of copyright. Looking at the results, we can all agree that the work which is created by AI is at par with that of human beings, sometimes even better. Department of Computer at Information Science at the University of Konstanz, Germany developed a prodigy robot called E- David. It can create original artwork by autonomously taking pictures with its camera using a complex visual algorithm resulting in the creation  of original paintings from these pictures[1]. If a human being creates such an original artwork, it would be eligible for copyright protection. The Turing test is for the AI systems and Machines which determine whether the system or the machine is exhibiting intelligent behaviour equivalent or indistinguishable from that of human behaviour if the human evaluator is not able to distinguish whether the output is a machine or human-created, then the test is passed. In the recent years, there has been an increase in the number of AI systems passing the Turing test like the creation of Lamus software programmes which creates musical works that were performed at the London Symphony Orchestra[2]. Another famous instance is the poetry writing software, developed by Zackary Scholl in 2011 which produced a poem that got published in a literary journal and the editors could not distinguish that a computer programme had written it[3].

 

AI systems are evolving rapidly, blurring the lines between the original works and mere computer-generated works. AI is challenging the conventional copyright laws in India, and Internationally resulting in legal implications and ambiguities regarding ownership, authorship and accountability in AI-generated works. Section 13 of the Copyright Act, 1957 mentions that for the copyright to exist in the literary, dramatic, musical and artificial work, it should be original. Now the act does not define the word original but in Eastern book co. V D.B. Modak, the Supreme Court adopted ‘modicum of creativity’ as a standard for determining whether the work is authentic or not and therefore be eligible for copyright protection or not. The work should meet a minimum level of creativity and should not only be a mere output of skill and labour. Since the necessary level of creativity is not high, AI-generated work may meet this originality standard and be copyrightable. However, the second definition given by the act is deciding the author of the work. Section 2(d) of the act talks about the author of the literary, dramatic, musical or artistic work which is computer-generated to be a person who causes such work to be created. If we look at this definition, then we can see that AI-generated work can fall under the computer-generated work, but the author of such work will not be the AI system but rather the person who causes the work to be created. This definition implies that only natural persons can be protected as the author under the act. In fact, Practice and Procedural Manual of 2018[4] issues by the Copyright Office, states in the application for the registration of the literary works, only the details of natural persons should be provided, i.e. who has actually created the work. In Amarnath Sehgal v. Union of Delhi[5], the Delhi High Court recognised the author’s moral rights under the Section 57 of the Copyright Act,1957 which includes the right of paternity, the right to maintain purity/integrity and the right of retraction. It was held that these rights originate from the fact the author is uniquely invested in his/her work, and there is a privileged relationship that exists between both, therefore in cases of AI-generated works, such association is difficult to establish.

So AI might be deemed original in the current existing laws and technological landscape, they may not be attributed authorship thereof. There exists ambiguity regarding the identification of the person who caused the work to be created of the AI system. In India, under the copyright law, under certain situations, copyright may be granted to no- natural, legal and juristic persona like companies, organisation and the Government. If in future AI systems are declared as legal or juristic persons then they could be granted the copyright ownership in certain situations however this can result in issues relating to the transfer of the copyright, the commercial aspect and it may have consequences for a party seeking to monetise the works created through AI. The Indian Courts are yet to address some intricate issues surrounding the copyright and ownership of the AI-generated work which were raised when Sophia was granted citizenship in 2017 by Saudi Arabia[6]. AI systems have capabilities which are customary to human intelligence; Thus, challenging the existing notions which are pressuring the existing legal frameworks to evolve. It would be interesting to see how the law will develop and protect the AI developers and users and also the AI systems and their powerful juristic personality.

• PATENTS AND INTELLECTUAL PROPERTY RIGHTS

Artificial Intelligence has created a wave in the entire technology eco-system and has raised some fundamental questions and debates. One needs to understand that any invention related to AI is not a single invention but a combination of several of them. It can be a mathematical method or an algorithm or maybe both. There are no fixed criteria. The question which arises is whether these

combinations can be combined in one single claim and whether doing so, would reduce the scope of their protection. The foundation of AI lies in its algorithms and mathematical models. In India, we have an absolute ban on the patentability of algorithms and computer programmes unless they produce some technical contribution which will be challenging to establish in an AI-related invention. Section 3(k) of the Indian Patents Act, 1970 categorises mathematical and business methods, computer programmes and algorithms as non-patentable matter.  European Union Intellectual Property Office (EUIPO) refused two patent applications in January this year that listed AI as its inventor on the application stating that the inventor has to be a human being and not the machine. The two applications were for the Food Container[7] and Devices and Methods for Attracting Enhanced Attention[8]. These applications were filled by ‘Artificial Inventor Project’ that also filed national phase applications under the PCT including the United Kingdom. The UK Patents Office rejected the application stating that no law allows the transfer of ownership from the invention to the owner in this case, as the inventor cannot hold the property.

Making machines and computers as inventors can be tricky and they have no rights, ethics and duties and is it possible to patent a technology which is dynamic and will change and evolve with changing times and attitude of humans? It seems tricky to patent every single change.  There is another question which remains that who will ultimately get the patent? Will it be an inventor who has put all his/her efforts or the programmer who has worked equally hard. Who will be responsible if AI commits a breach? For an invention to be applicable for patent protection, it has to pass the patentability criteria which includes that it possesses novelty, an inventive step and should be capable of industrial application[9]. AI can process a higher level of intelligence and productivity, so there is a likelihood that all innovative steps could be evident to Artificial Intelligence. When it comes to inventive step, it is not easy to make innovations on existing modules or concepts which is not skilled in the art. Courts in some cases have denied patents to programs simply because what they perform is mechanical rather than it being inventive since they primarily run on computer programs[10]. According to the report by the Confederation of Indian Industry (CII) and Tata   Consultancy Services[11], India will have to bring in new guidelines and policies for the enforcement of patents, intellectual property rights, and intellectual property management in an AI work. The IP and the patent laws in India are outdated in India and with the increasing AI inventions and patent application of the same, it will be interesting to see how the patent offices and regulators revise the existing patent and IP laws that fit in the new emerging technology.

ARTIFICIAL INTELLIGENCE AND IMPACT ON THE INDIAN LEGAL SYSTEM

 A computer system can perform tasks which ordinarily require human intelligence is known as Artificial Intelligence. Kerala Police in February 2019 induces a robot for police work. In the same month, Chennai opened its second robot-themed restaurants while the robots not only serve but can interact with the customers in both English and Tamil. All of these examples make us realise the arrival of AI in our daily lives. The capability of AI systems to learn from experience and perform autonomously makes it the most disruptive and self transformative technology. If the regulation of AI is not completed correctly, it can have unmanageable implications. The Indian Legal system is still relying on the methods and solutions designed years ago, and there is very little innovation in technology. If we think about it, AI can play a big part in changing the ways lawyers operate.  For instance, legal research is one such domain where AI can help in a significant way. Indian legal system is vast and dynamic, and with the use of AI, lawyers can get unparallel insight into the legal domain within seconds.

Currently, legal research requires a significant amount of person-hours, reducing the profitability and productivity of a law firm. An AI-based research platform can help in getting quality research within seconds. It can provide lawyers with highly efficient and advancements tools assisting lawyers to become better in advising clients or litigating. Some of the legal startups like CaseMine, Pensieve, SpotDraft our building Natural Language Processing (NLP) based applications resulting in the next generation legal research platforms that help law firms to go beyond simple research making it less time-consuming. AI has tremendous scope for the Indian Legal sector, and a combination of both will witness in immense growth soon.  Some of the fields where the AI  is currently in the legal industry providing to be useful is Due Diligence, prediction technology, legal analytics, Automation on documents, IP and electronic billing.

• WILL ARTIFICIAL INTELLIGENCE REPLACE LAWYERS?

A burning question among the lawyers is whether the introduction of AI in the legal sector would replace the Lawyers and the Legal Analyst. The legal industry has seen many new solutions where the technology has improved the efficiency, contract analysis, research, etc. and in the same way, IA based software programme only targets to increase the authenticity, accuracy of the results and improve the products. They do not target to take a Lawyer’s job. The legal profession includes analytical and decision making skills which can not be automated. The AI-based software and programmes can reduce the time and effort and help the firms in giving more authentic and result oriented suggestions. AI  based automated assistant tools are not going to replace the lawyers but would make them more efficient. The evidence from other industries like healthcare and even e-commerce are enough to believe that AI will only help the lawyers and not replace them. Our honourable Chief Justice of India, SA Bobde, said that the Supreme Court has proposed to introduce a system of AI (artificial intelligence) which would help in better administration of justice delivery. However, he also cleared misconception that the AI would never replace the judges.

 

LEGAL CHALLENGES

 

AI and its application are part of our everyday lives, and it has the potential to revolutionalise society in positive ways. However, with any scientific or technological advancement, there is a real risk that it can harm Human Rights, including the Right of Privacy/ Data Protection. The machines are equipped with the ability to sense, process and record the world around them with access to our personal information. We give them access to monitor use, thereby giving them full surveillance autonomy. For instance, Google Duplex with AI-driven voice was designed to help people make an appointment to business over the phone but without any interaction from the user. The Personal Data Protection Bill (Privacy Bill 2018) intends to make the organisation accountable for personal data processed, and it has even given a wider definition of the word ‘personal data’. It has even given the person, whose data is collected the right to have his information erased. In the absence of direct human mind behind any action AI system undertakes, who is supposed to be blamed for the loss of the innocent users? Complete dependency on AI system is risky, and if we go into more in-depth analysis, then the consequences are even severe. What if AI-based driverless care gets into the accident which results in damage to property and harm to human life, who will be held responsible? Can AI also become witnesses, and can they also be used as tools for committing crimes? Challenges also include the inequality wherein the AI systems might be given preference over human beings. Since there is no decision on whether robots are a legal person or not, their legal rights and duties are unjustified. In 2018, NITI Aayog, the policy think tank of the Government of India, released a discussion paper on ‘National Strategy for Artificial Intelligence’. It is the first significant step towards the regulation of AI in India. However, the innovation is so fast-paced that the regulatory system is not able to keep pace with the developments. Thus, the need of the hour is to develop a regulatory framework.

 

CONCLUSION

 

Artificial Intelligence is part of our lives which will evolve with the changing times.  The time is not far when it will become an integral part of the legal sector. Many may argue that manually reviewing documents can prove to be accurate, but one cannot compete with the speed of AI systems. They get done work in hours which would otherwise take a team of legal experts or paralegal to perform in days. There are several advantages of using AI in the legal section, and as compared to the western world, it is still a new concept in India.  A robot or AI cannot replace lawyers, and in the future, the popularity and use of AI in the legal sector will only go up

 

[1]  Shlomit Yanisky-Ravid, “Generating Rembrandt: Artificial Intelligence, Copyright, and Accountability in the 3A Era – The Human-Like Authors are Already Here – A New Model”, Michigan State Law Review, 659 (2017).

 

[2] Robert Denicola, “Ex Machina: Copyright Protection for Computer-Generated Works”, Rutgers University Law Review, 251 (2016).

[3] Brian Merchant, The Poem that Passed the Thring Test, VICE Motherboard, available at: https://www.vice.com/en_us/article/vvbxxd/the-poem-that-passed-the-turing-test  (Last visited 9^th May 2020)

[4] Practice and Procedure Manual (2018), Copyright Office, Government of India, available at: http://copyright.gov.in/Documents/Public_Notice_inviting_reviews_and_comments_of_stakeholders_on_draft_guidelines/Literary_Work.pdf ( Last visited 10^th May, 2020)

[5] 2005 (30) PTC 253 Del.

[6] In 2017 Saudi Arabia granted an AI humanoid (‘Sophia’) citizenship, which raised questions as to the copyright ownership and accountability of AI systems.

 

[7] Patent Application # EP3564144.

[8] Patent Application # EP3563896.

[9] The Patents Act, § 2(I), 1970 (India); The Patents Act, § 2(ja), 1970 (India); The Patents Act, § 2(ac), 1970 (India).

[10] Bilsk v. Kappos, 561 U.S. 593 (2010).

[11] https://www.mycii.in/KmResourceApplication/64684.CIITCSReportUnderstandingtheDynam.pdf