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Cyberspace Regulatory Models and their Feasibility

In order to address the issues posed by cyberspace in the present day, few scholars have contended that it should not be regulated at all, as any form of regulation might stifle the unfettered potential for growth in cyberspace.

These arguments rely on the fact that over a period of time, cyberspace as well as its users, will mature, which will automatically create a robust and socially organized system. This contention is further based on the premise that the act of discouraging or looking down upon undesirable conduct on the internet is similar to how such undesirable acts are looked down upon in real life. Informal social control regulates the behaviour of an individual even though no one is looking. If such social control fails in any manner, sanctions like explicit disapproval in the society, ridicule or ostracism, act as a form of payback to the individual.

Scholars who base their arguments on informal social control also assert that when an individual uses the internet, he abstains from any misconduct out of the fear of internalised norms, and not out of the fear of law, taking into consideration that most of the individuals are unaware which acts are not acceptable in the cyberspace. Therefore, they apply the same standards of caution and care as they would apply, in case of the real world.

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Thus, over a period of time, individuals will acquaint themselves with what is and what is not acceptable in the cyberspace, and the informal social control will act as an effective regulator.

However, these arguments fail because even in the real world, there are deviant subcultures who do not conform to the norms of the society. Also, misconducts in the real world differ from the misconducts in the cyberspace. Therefore, there is a need for formal regulation of cyberspace. This need is further amplified owing to the cross-national impact of use of cyberspace. Furthermore, cyberspace regulation is necessary as an unregulated cyberspace creates an environment where the rights of individuals as well as the remedies available to them, is uncertain[1]. This uncertainty has the capacity to undermine the legal systems of the world, owing to cyberspace’s global import[2].

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Taking into account the nature of cyberspace and its implications on different aspects of an individual’s life, the conduct of various nation states and corporations, it can be concluded that there is a need to address the question of governance of cyberspace. The current literature and deliberations by various scholars suggest that the question is not whether cyberspace should be regulated, but how it should be regulated and who are the stakeholders in the process of regulation.

The following are the proposed models of cyberspace regulation by various scholars-

  • Regulation by code and architecture

Certain scholars[3] propose the use of code and architecture for regulating cyberspace. They believe that since internet was invented for research and not for commerce, its founding protocols are inherently unsecure and are primarily designed for sharing the data, rather than concealing it. This provides a breeding ground for cybercrime activities.

However, it is argued by these scholars that the internet is, by far, the most regulable space, since, through its architecture, it can reveal who someone is, where they are and what they are doing[4]. The code and architecture of the technology can very easily help in identifying the wrongdoer by tracing the Internet Protocol (IP) address of the computer used for the commission of cybercrime.

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The scholars also argue that the specific issue of territoriality posed by the cyberspace can only be addressed by the use of code and architecture to trace down the actual location of the computer which was used to commit wrongful acts on the internet[5].

However, merely relying on codes and architecture can, although help in identifying the cybercriminal, but it will not play a key role in preventing cybercrimes and ensuring prosecution of such cybercriminals.

  • Regulation by the Government

The role of government in the regulation of cyberspace comes in picture by virtue of sovereignty, territoriality (over its subjects who might be victim of cybercrime), public interest (addressing cybersecurity issues which are posed to its subjects) and national security.

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Government is considered to have a primary responsibility for formulating cyberspace policies which govern the cyberspace and stimulate the rights, liabilities and remedies available to the parties involved. It is also obligated to take steps for international co-operation in the field of cyberspace regulation, owing to the borderless nature of the cyberspace and the jurisdictional issues stemming from it.

However, the model of governance where just the government is responsible for regulating the cyberspace fails to take into consideration the ineffectiveness of government in addressing the issues faced in the real world. If the state is not competent to regulate its territorial limits itself, how can it be expected to single-handedly regulate the cyberspace, which has no territorial limits. Further, the state might not have appropriate strategies to tackle these issues, owing to the technical nature of such activities.

  • Self-regulation by private players

Another model of cyberspace regulation relates to the regulation by the market i.e. self-regulation by the key market players or the private institutions.

The private players are the major stakeholders in the cyberspace due to which they have a great impact on the policies formulated by the government. Some scholars believe that compared to the regulation by government, self-regulation offers greater speed, flexibility and efficiency[6]. Furthermore, the fact that self-regulation responds to the specific industry circumstances makes it more desirable form of regulation.

There are primarily three forms of self-regulation by the private players with respect to the role of government in such regulation[7]–

  1. voluntary or total self-regulation, without government involvement;
  2. mandated self-regulation, which involves direct government involvement;
  • mandated partial self-regulation, with partial government involvement.

It is difficult to see the first form of self-regulation i.e. pure self-regulation, without any governmental involvement. However, such form of self-regulations do exist. For example, to address the issue of online infringement of copyright in the United States, the Recording Industry Association of America (RIAA), an association formed by music companies in the United States, conducts its own investigations to locate the IP addresses of those who are illegally sharing music[8].

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Self-regulation by private players is mostly directed, shaped or endorsed by the government[9]. One example of such model is the Internet Corporation for Assigned Names and Numbers (ICANN)[10]. It is a non-profit organisation that operates the internet’s Domain Name System (DNS). It is contracted by the US Department of Commerce and overseen by the US Government.

Taking into consideration its effectiveness in efficiently addressing the issues at hand and its viability, self-regulation is often considered the only legitimate form with which to govern cyberspace.[11]

However, self-regulation without governmental involvement to a certain degree, can prove to be detrimental to the society, owing to the global import of cybercrimes and the lack of resources with the private players to address the issues faced in the cyberspace, which is often a chain reaction with a number of victims.

  • Judicial model[12]

The judicial model of cyberspace regulation is based on the premise that since the issues faced in the cyberspace are same or similar to the ones faced in the real world, the regulation of cyberspace should be left at the hands of judiciary as it can regulate the same by applying the existing principles which are used to address the legal issues in real world. Therefore, such principles can be applied to Cyberspace to facilitate an effective regulatory regime[13].

However, this model is inherently flawed in a number of ways. Firstly, courts cannot transpose the existing principles of the physical world to the cyber world owing to the nature of the issues. Also, many issued faced in the cyberworld have no equivalent in the real world. Secondly, this model of regulation totally disregards the question of jurisdiction while applying the traditional legal concepts to the cyberworld. This role of judiciary might come into picture in developing new principles[14] to be applicable to the cyberspace. However, this is the last step towards the prosecution of cybercriminals and is not, in itself sufficient to regulate the cyberspace.

  • Multi stakeholder model of regulation

This model of regulation highlights the flaws in putting the obligation of regulation on the government or the private players. Unlike crime in the real world, cybercrime is not typical one-to-one victimisation[15]. Therefore, scholars have argued that in order to tackle the issues arising from the use of internet in the cyberspace, a higher level of cooperation with states, the private sector and even individual users is required.[16]

This model brings into picture the active and responsible role played by the civilians, as they are the first ones who come to know about the commission of such cybercrimes.[17] Further, since cybercrimes are mostly chain reactions, there is a need for sharing of information about commission of such crimes or cyber security breaches by the individuals and the public and private sectors[18].

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There is no ‘one-size-fits-all’ approach for regulation of cyberspace. All the stakeholders have their own interests and limitations in playing a role in regulating the same. Therefore, the approach involving all the stakeholders addresses the flaws faced by other regulatory models like code and architecture, regulation by the government, self-regulation and judicial regulation and might be the best suited solution for now.

[1] S. M. Hanley, International Internet Regulation: A Multinational Approach, 16 JOHN MARSHALL JOURNAL COMPUTER AND INFORMATION LAW 997, (1998).

[2] D. R. Johnson and D. G. Post, Law and Borders- The Rise of Law in Cyber-Space, 48 STANFORD LAW REVIEW 1367, (1996).

[3] L Lessig and Neal K Katyal.

[4] Lessig

[5] NK Katyal, Digital architecture as crime control, 112(8) YALE LAW JOURNAL 2261, (2003).

[6] N Gunningham, P Grabosky and D Sinclair, Smart Regulation: Designing Environmental Policy, OXFORD CLARENDON PRESS, 52 (1998).

[7] Id.

[8] RIAA, https://www.riaa.com/ (last visited Jan. 29, 2021).

[9] N Tusikov, Chokepoints: Global Private Regulation on the Internet, UNIVERSITY OF CALIFORNIA PRESS, (2016).

[10] ICANN, https://www.icann.org/ (last visited Jan. 29, 2021).

[11] Supra note 4.

[12] Yee Fen Lim, Law and Regulation in Cyberspace, International Conference on Cyberworlds (2003).

[13] Bick J. D., Why Should the Internet Be Any Different?, 9 PACE LAW REVIEW 41, (1998).

[14] Effects test of intentional targeting, Zippo sliding scale test etc.

[15] S W Brenner, Distributed security: Moving away from reactive law enforcement, 9 INTERNATIONAL JOURNAL OF COMMUNICATION LAW & POLICY, (2005).

[16] R Ericson, Crime in an Insecure World, POLITY, (2007).

[17] Supra note 17.

[18] LYC Chang, Cybercrime in the Greater China Region: Regulatory Responses and Crime Prevention across the Taiwan Strait, (2012).

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The Chancellor, Masters & Scholars of University of Oxford and Ors.Vs. Rameshwari Photocopy Services and Ors

Delhi High Court

Judges: Justice Pradeep Nandrajog and Justice Yogesh Khanna

Applicable law: Section 52 of the Copyright Act, 1957

Did you know: A reproduction of a copyrighted work by a teacher or pupil in the course of instruction is allowed and is not an infringement of the copyright

Where it all began:

  1. University and Photocopy Shop were photocopying excerpts from the publications of the plaintiffs and were issuing/selling the said compilations in the form of course packs
  2. The world famous publishers alleged that such publication and sale constituted a copyright infringement and filed a case to require the University of Delhi and the photocopy shop to obtain a license.
  3. The Hon’ble single bench of the Delhi High Court dismissed the suit and an appeal was filed by the publishers before the division bench.

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Legal issue: Whether the right to reproduce work by a teacher or a pupil in the course of instruction is absolute or there are any conditions attached to such a right?

Publisher’s arguments: There are restrictions of fair use that apply to reproduction of materials by teachers and pupils and a license is necessary

University’s arguments: There are no restrictions that apply to the right of reproduction ad no infringement has occurred in this case.

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Judgment in the case:

  1. The court held that it only has to be seen is whether the work used was necessary for achieving the purpose of educational instruction- if it is there will be no infringement
  2. There is no adverse impact on the market of the books because the students still have access to the books in the library.
  3. It was held that the phrase ‘course of instruction’ used in the section will not be limited to just teaching in the classroom but will also apply to the entire program of education
  4. Because the university was not engaged in profit-making the activitiy could not be termed a publication.
  5. The appeal was dismissed and it was held that the preparation and distribution of the course packs was permitted and not an infringement of copyright. The case was sent back to the Single Bench for decision on the question whether whether the course packs were necessary for the educational instruction or not. The suit was finally withdrawn by the publishers

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Significance

The judgment in the case is hailed as a big victory for promoting the access to education. Many writers and academicians, many of whom were infact associated with the publishers, from all over the world condemned the filing of this suit and asked the publishers to withdraw it.

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The Puttaswamy Judgement- How Is Privacy a Fundamental Right?

The jurisprudence in India with respect to the status of right to privacy as a fundamental right has been quite dicey, as pointed out in the previous section. It was only in the case of Justice K. S. Puttaswamy v. Union of India[1] that the Apex Court exclusively dealt with this issue. The case was a reference made by a five-judge bench of the Apex Court to a nine-judge bench. The reference was made owing to the ambiguity arising from the judicial precedents on the status and scope of the right to privacy. The nine-judge bench unanimously held that the right to privacy is an intrinsic part of personal liberty under Article 21 of the Indian Constitution.

The majority opinion authored by Justice Chadrachud discusses in detail, a number of reasons which led to the recognition of privacy as a fundamental right. The following are some of the reasons pointed by the Hon’ble Court in this regard-

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  • Natural and inalienable rights[2]

The court pointed out that privacy, as a right, can be traced to the notion of inalienable rights i.e. the rights which are inherent in and are inseparable from a human being.

Although these rights are inalienable, however, the autonomy which an individual enjoys, by virtue of these rights, is not absolute. The court pointed out an example wherein one employs another person to kill oneself. Here, the individual exercised his autonomy to violate his inalienable right to life. For this simple reason, such autonomy cannot be absolute in nature.

  • Jurisprudence on dignity[3]

The court asserted that ‘dignity’, as a constitutional value, finds its place in the Preamble of the Indian Constitution[4]. The court also said that individual is the main focus of the Constitution as the realisation of individual rights plays a key role in achieving the collective well-being of the community. Therefore, human dignity forms an integral part of the Constitution.

The court held that the sanctity of privacy lies in its functional relationship with dignity, thereby establishing a link between dignity and privacy.

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  • Essential nature of privacy[5]

The court was of the opinion that privacy highlights the reservation of a private space for the individual; the right to be let alone. The concept is based on the autonomy of the individual.

The court further held that the ability to make choices lie at the core of the human personality. In this process, privacy plays an instrumental role by enabling the individual to assert and control the choices he/she makes. Recognizing a zone of privacy is a mere acknowledgment that individual should enjoy autonomy in the development of his/her personality.

Therefore, the court established a relationship between dignity and autonomy with privacy. By virtue of this relationship, the right to privacy forms an important element of human dignity as well.

  • International obligations[6]

Secondly, the court pointed out India’s international obligations towards protection of privacy by virtue of Article 12 of UDHR[7] and Article 17 of ICCPR[8]. Further, Article 51 of the Constitution requires the State to endeavour to “foster respect for international law and treaty obligations in the dealings of organized peoples with one another”[9].

The Protection of Human Rights Act, 1993 also defines “human rights” and includes ‘dignity of individual’[10] under its ambit. Therefore, India is under an obligation to safeguard the privacy aspects of human dignity.

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The court also took note of India’s commitment towards international obligations by pointing out the stand of the Indian judiciary in Bacchan Singh v. State of Punjab[11], with respect to the use of the death penalty underlining India’s obligations under ICCPR, and Vishaka v. State of Rajasthan[12], where the court relied on the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) to provide guidelines prohibiting sexual harassment.

  • Statutory protection cannot deny a constitutional right[13]

The court stated that although certain aspects of privacy have been protected under different statutes, nevertheless, providing constitutional protection to a right, places it “beyond the pale of legislative majorities”[14]. If privacy is considered as a part of the basic structure of the Constitution, it becomes inviolable even through an amendment. However, ordinary statutes come under the ambit of amendment/modification.

  • Not a mere common law right[15]

The court, while addressing the issue that privacy is protected through common law, held that common law protection cannot bar constitutional recognition of a right, which is afforded because such right is an aspect of fundamental freedom or liberty which the draftsperson considered to be so significant as to require constitutional protection.

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  • The ruling of the court- Right to privacy as a fundamental right[16]

Taking into account the reasons summarized above, the court finally held that the right to privacy is constitutionally protected, emerging from the right of life and personal liberty under Article 21 of the Constitution.[17]

Secondly, privacy safeguards personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation[18]. However, this list is not exhaustive[19].

Thirdly, the right to privacy is not an absolute right, like any other right under Part III of the Constitution, including the right to life and personal liberty. Privacy can be encroached by law however, such law should withstand the touchstone of permissible restrictions on fundamental rights. The court formulated a three-pronged test which a law has to pass to intrude into the right to life and personal liberty[20]–

  1. Legality
  2. Legitimate state aim
  3. Proportionality

The Court also unequivocally held that the doctrinal premise of M.P. Sharma[21] and Kharak Singh stand invalidated. The court also appreciated the minority view of Justice Subba Rao in Kharak Singh[22].

  • THE IMPLICATIONS OF RIGHT TO PRIVACY AS A FUNDAMENTAL RIGHT

Common Cause v. Union of India[23] represents the first important application of the principles laid down in Puttaswamy[24] with respect to right to self-determination and freedom to make fundamental choices about how to use one’s body[25], as part of fundamental rights under the Constitution.

Further, the Supreme Court while restoring Hadiya’s marriage opined that Hadiya is having internal freedom of choice, marriage and autonomy.[26]

Therefore, ‘privacy’, as a concept incorporates a number of aspects that are now accorded protection under the umbrella of personal liberty under Article 21 of the Constitution.

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[1] Justice K. S. Puttaswamy v. Union of India, (2017) 10 SCC 1.

[2] Id, part G.

[3] Supra note 32, part I.

[4] Supra note 6, Preamble.

[5] Supra note 32, part R.

[6] Supra note 32, part J.

[7] Supra note 4.

[8] Supra note 5.

[9] Supra note 6, Art. 51.

[10] Protection of Human Rights Act, 1993, s. 2(1)(d).

[11] Bacchan Singh v. State of Punjab, (1980) 2 SCC 684.

[12] Vishaka v. State of Rajasthan, (1997) 6 SCC 241.

[13] Supra note 32, part N.

[14] Supra note 32, para 153.

[15] Supra note 32, part P.

[16] Supra note 32, part T.

[17] Supra note 32, part T(3)(C).

[18] Supra note 32, part T(3)(F).

[19] Supra note 32, part T(3)(G).

[20] Supra note 3.

[21] Supra note 14.

[22] Supra note 9.

[23] Common Cause v. Union of India, (2018) 5 SCC.

[24] Supra note 32, part T.

[25] Recognition of right to die with dignity as a part of right to life under article 21.

[26] Shafin Jahan v. Ashokan K.M, 2018 SCC Online SC 201.

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Challenges Posed by the Development of Information Technology

Technology is an essential part of our day-to-day lives. It has made communication and dissemination of information faster and easier. Further, exchange of ideas as well as sale and purchase of goods and services have been facilitated with the advent of internet. Technology and the internet has become so intrinsic a part of our life that we cannot even think about planning our day without the involvement of such technology or the internet. However, this is just one side of the coin. On the flip side, technological advancement has created issues which impact different aspects of our lives. The following part analyses different challenges posed by information technology and the internet to the global community at large.

  • Criminal law

Technological advancement and the internet has provided a breeding ground for commission of crime as the use of computers and the internet is a cheaper means to perpetrate crime which simultaneously impacts a large section of society. These crimes are termed as cybercrimes. They are specifically different from traditional crimes owing to its global import, the anonymous identity of the perpetrator and the involvement of third parties like the Internet Service Providers and the Intermediaries. However, this difference is discarded by the scholars who believe that traditional system of laws are adequate to deal with the crimes in the digital age.

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It is pertinent to note that although cyberspace just acts as a medium to perpetrate a crime, however, it has a number of implications attached to it, which highlights the need for a separate legal framework to punish cybercrimes. Taking into account this issue, different jurisdictions[1] have enacted separate piece of legislations to specifically deal with cybercrimes.

Generally, cybercrimes can be classified as-

  1. Against persons (for example, harassment, spoofing, stalking)
  2. Against property (for example, IPR, data theft, trespass, squatting)
  • Against infrastructure (for example, attack on critical infrastructure)
  1. Against society (for example, pornography, gambling, cyber trafficking, forgery etc.)

Therefore, considering the fact that certain crimes emerged only because of the use of technology, traditional laws cannot be applied to address the criminal law issues posed by cyberspace.

  • Privacy and data protection

Right to privacy is considered a fundamental human right[2] and state is under an obligation to protect the same from unnecessary intrusion. Although cyberspace is not a real place and does not actually exist, however, vast amount of digital information exist in the servers, which includes personal as well as sensitive personal data of individuals. Further, with time, the collection of such data will only increase, which further increases the risk posed by technology in protection of such data.

The manner in which data of individuals is collected and stored has changed after technology came into being. Previously, such data was stored in paper files locked in the chambers of the institutions which collected it. Therefore, the sheer costs of retrieving such data, the impermanency of the forms in which it was stored and the inconvenience experienced in procuring access (assuming that its existence was known), made the issue of privacy and data protection were negligible. However, information stored in servers, which are susceptible to cyberattacks, has significantly increased the risk of data breach/leak.

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Therefore, cyberspace is, in essence, a public domain and if such space is left unregulated, the violation of individual’s right to privacy is a real possibility.

  • Intellectual property rights

With respect to intellectual property right, advances in digital technology and the commercialization of the Internet has altered the core of copyright. The internet has facilitated the level of online piracy of copyrighted works. Unlicensed, but always perfect, copies and streams of copyrighted works are readily available on the internet. With the growth of streaming services, direct download sites, and peer-to-peer services such as BitTorrent, the old problem of online piracy has extended and spread in an unanticipated manner.

With respect to the realm of trademark, information technology and the internet has led to emergence of domain name issues like typosquatting (where a person registers a domain name similar to a real domain name, but with a typo, in hopes that web surfers reach it by accident), cybersquatting (Cybersquatting is done when domain names are registered, sold or trafficked-in with the intention to make profit from the goodwill of someone else) and pagejacking (when the offender copies part of an existing website, and then puts it up on a different website to make it look like the original).

Therefore, technology and the internet have created new issues with respect to the protection of intellectual property rights and has compromised the rights of individuals who legally own the intellectual property.

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  • Contract and tort law

Internet has ensured that communication is no more restricted to the constraints of geography and time. The speed and ease with which communication as well as transactions take place on the internet has led to the evolution of electronic commerce sector, which provides flexibility to business environment in terms of place, time, space, distance, and payment.

With the growth of e-commerce, there is a rapid advancement in the use of e-contracts. These e-contracts are different from the traditional paper contracts, not just in the form, but also with respect to the specific issues posed by it, for example when exactly is acceptance considered to be communicated on the internet. To address these specific issues, the courts have modified the traditional principles of contract law to adapt to the changing requirements posed by the technology.

Further, the issue of defective softwares as well as cyber defamation require specific deliberation with respect to the applicability of conventional contract and tort law respectively.

  • Jurisdiction

With respect to the issues highlighted above, one of the remedies available to the aggrieved party is to approach the court. However, internet and cyberspace has further created issues in ascertaining appropriate jurisdiction to entertain a suit. The traditional territorial principles become fallible in the computer-world as the Internet greatly diminishes the significance of physical location of the parties, because transactions in cyberspace are not geographically based and are borderless.

A cybercriminal might be a national of one country, operating his computer, in second country and hacking the computer systems of a company located in the third country. If we adopt the traditional territorial principle of jurisdiction, the country from where the cybercriminal is operating his computer will assume jurisdiction over him. But if that country does not have proper legal framework criminalising such cybercrime, then the territorial principle could be made use of for evading criminal liability, as then such criminals will necessarily locate their computers in the jurisdictions with weak or no control over the cybercrime. Thus, the effective prosecution of such a crime can be seriously hampered if proper jurisdictional principles are not evolved.

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This highlights the need to have principles which allow application of extra-territorial jurisdiction in cases of cyber crime.

[1] Computer Misuse Act, 1990 (United Kingdom), Information Technology Act, 2000 (India) etc.

[2] Universal Declaration of Human Rights, 1948, Art. 12; International Covenant on Civil and Political Rights, 1966, Art. 17.

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Comparative Public Law

  • PUBLIC LAW- AN INTRODUCTION

In general terms, a state is defined as an independent political entity, occupying a defined territory, the members of which are united together for the purpose of resisting external force and preservation of internal order[1]. This definition highlights the ‘police functions’ of the state. However, the modern-day functions of the state are not limited to mere policing, rather, the state has become a ‘welfare state’ wherein it plays a key role by protecting and promoting the socio-economic development of its citizens, right from cradle to the grave.

For the purpose of discharging the wide range of functions entrusted to the state, it becomes necessary to establish certain basic organs or instrumentalities, which would act on the state’s behalf and assist the state in fulfilling its obligations. This highlights the need for different organs of government and the subsequent need for constitutional and administrative law to regulate the functioning of such organs.

With respect to discharging of functions by state, the law of the land can be divided into two broad headings, law governing the state and its relationship with the citizens, and the law governing and regulating the affairs of the citizens. Constitutional Law, Administrative Law and Public International Law come under the ambit of the former category of law i.e. the public law, and the law relating to Contracts, Torts, Property come under the ambit of the latter category i.e. the private law.

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Therefore, public law can be considered as the body of law which governs the state and its organs and the relationship of private subjects (including both individuals and artificial legal personalities) with the state and its organs (legislature, executive, and judiciary).

  • COMPARATIVE LAW- MEANING AND DEVELOPMENT

Comparison is a logical and inductive method of reasoning which helps an individual to objectively identify the merits and demerits of any norm, practice, system, procedure or institution, as compared to that of others or their own. People indulge in comparisons in day-to-day transactions as well, while purchasing goods or services, investing, learning, choosing an appropriate leader for themselves or in their personal lives.

Comparative study becomes a tool that assists an individual in arriving at a decision. It is often used in various disciplines, both in natural and social sciences.

With reference to the field of law, comparative analysis involves an evaluation of human experiences occurring in the legal regimes of different jurisdictions in different situations. The comparative study of laws of different states is termed comparative law. It is not a legal text or body of rules, rather more of a method.

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Montesquieu in his book De l’esprit des lois[2] adopted a comparative approach by analyzing the punishments specified under the penal laws in France and Engalnd. Therefore, he is often known as the ‘Father of comparative law’. Further, Professor Bernard Schwartz is considered one of the first in the common law countries to realize the growing importance of comparative law in the modern world[3].

In modern times, globalization and liberalization led to a boom in the trade relations of different states. This led to the creation of interconnectivity between different sectors of various nations. This made comparative law indispensable. Taking note of the necessity of comparative law, the First International Congress of Comparative Law was held in Paris in 1990, which acknowledged and analyzed the comparative method of the law.

With specific reference to India, comparative law was used as early as in the pre-independence era when the Law Commission of India deliberated on different models and policies relating to criminal liability in common law and civil law, in addition to the existing indigenous law of different parts of India, during the formulation of the Indian Penal Code[4].

  • COMPARATIVE PUBLIC LAW- MEANING AND DEVELOPMENT

Taking into consideration the meaning and implications of public law and comparative law, comparative public law can be defined as a comparative study or analysis of the laws of different countries which govern the state and its relationship with its subjects. Therefore, it encompasses the comparative study of constitutional as well as administrative law of different jurisdictions.

Comparative public law has played a key role in the drafting of constitutions of new democracies like India. According to Upendra Baxi,

“constitution makers everywhere remain concerned with the best constitutional design, however, that ‘best’ consists in ‘shopping’ around available models and adapting to their needs and aspirations. The eventual mix, is constrained by history interlaced with future-looking aspirations for social transformation.”[5]

The role of comparative public law is very evident in the Indian Constitution. During the drafting of the Indian Constitution, the discussion on preamble[6], fundamental rights[7], directive principles of state policy[8], parliamentary form of government[9], federalism[10], judicial review,[11] amendments,[12] equality before law[13], equal protection of law[14] etc. were primarily adopted after a comparative analysis of the constitutional laws in the United States of America, United Kingdom, Canada, Ireland, Australia and others.

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The role of comparative public law does not stop after the Constitution has been drafted. Subsequent constitutional developments take place through judicial decisions and academic research based on the use of foreign precedents and comparative constitutional literature. In a number of landmark judgments of the Supreme Court of India, relating to equality, expressional freedom, business, property right, right to life and personal liberty, death penalty, right to privacy, religious freedom and minority rights, one can find reference to foreign judgments in the course of interpretation of constitution and laws.[15]

  • THE SIGNIFICANCE OF COMPARATIVE PUBLIC LAW
    • Globalisation and advancement of technology

The study of comparative public law, though in its nascent stage, has gained popularity due to industrialisation, globalisation and liberalisation. Countries do not exist in isolation and the world has now become one global market due to the fast-emerging technologies and dissolving national boundaries. Individuals have started to perceive every aspect of their lives in the global context. For example, the issue of personal liberty and privacy in the era of technological developments has created issues that required the extension and acknowledgement of traditional constitutional principles to cyberspace.

In light of this era, the social, economic and legal problems faced by many countries are either of a similar kind or transnational. Therefore, the role of comparative public law comes into the picture by firstly, analysing the stand taken by other jurisdictions with regard to the issue which one state is facing now, and secondly, by addressing the transnational issues with international cooperation, for which a clear understanding of laws of other nations is required.

  • Interpretation of laws

Comparative public law plays an important role by helping the judiciary in discharging their function in primarily two ways-

  1. When there is a need to interpret certain aspects of law which have not been discussed in great detail by the legislature

If the judiciary is faced with a situation wherein there is a need to interpret the law, but the intention of the legislature is not very clear, the judiciary can rely on the comparative interpretation of laws in different jurisdictions to get an understanding as to what could be beneficial to the society at hand. In doing so, it can either apply the same interpretation or modify it, by tailoring it to the present as well as the future needs of the society.

  1. When there is a lacuna in the existing law of the land

There is a general presumption that all the countries of the world face more or less the same or similar kind of issues relating to public law and therefore, a comparative study of different legal systems with respect to their approach of tackling the issue prove helpful in addressing the issues faced in different jurisdictions.

Therefore, if a situation arises wherein the law of the land has not addressed a particular legal issue, the judiciary can take recourse to comparative public law analysis for understanding which approach is best suited for the country. This could be done by researching how a particular country has solved the public law issue at hand, and whether the same or similar approach can be adopted, or there is a need to modify such an approach.

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There have been a number of instances where the Indian judiciary has referred to a comparative analysis of the stand of different jurisdictions with respect to a particular legal issue, to arrive at a conclusion. For example, the majority opinion in Justice K S Puttaswamy v. Union of India[16] highlighted the fact that the concept of proportionality,[17] which is used to balance rights and competing interests, has been adopted by European law. Also, an entire section of the majority opinion[18] is dedicated to comparative law analysis of the recognition of right to privacy as a fundamental right under different jurisdictions. A similar approach was adopted by the Apex Court in Joseph Shine v. Union of India,[19] Navtej Singh Johar v. Union of India[20] and Common Cause v. Union of India[21], where the Supreme Court analysed and relied on the stand of foreign jurisdictions with respect to adultery[22], consensual sexual acts between homosexuals[23] and euthanasia and living will[24], respectively.

  • Understanding the differences of different legal systems of the world

The historical development of any society plays a significant role in the development of public law of that jurisdiction, with respect to the issues they faced and what was their approach while dealing with it. Understanding the historical development of the system of governance prevalent in the major legal systems helps in understanding how universally the premises of justice and other values are shared[25] and what moral assumptions, cultural traditions, historical experiences and economic considerations are reflected in a given society’s attitude towards the problem of social control.

  • Adopting the best practices

Comparative public law provides a clarification of the perspectives, conditions, and alternatives for all communities for securing and enhancing democratic values.[26] This comparison helps in recognising and adopting the best practices from the laws around the world into our legal framework. As Geoffrey Wilson pointed out, “comparative studies have been largely justified in terms of the benefit they bring to the national legal system.”[27]

The recognised best practices, with respect to a particular public law issue, helps in formulating appropriate laws and policies to deal with the present issues and the issues which might arise in future. This further aids in making the legal system more adaptive to the changing needs of society.

  • International world order and harmonization

Comparative public law enables understanding between different nations with a view to reducing world tension. It helps in resolving the differences in the public laws of different countries that are at a similar stages of development. It further helps in reducing the number of conflicts prevalent among the nations, which can be attributed to political, moral, social and historical differences. It further plays a role in the harmonization of law and bringing uniformity and reducing the differences.

  • THE PROCESS OF COMPARATIVE PUBLIC LAW

There are broadly two types of constitutional democracies vis-à-vis comparative law. Firstly, constitutional nationalism wherein it is believed that each nation has developed under different circumstances, whether social, political, economic, cultural or historical and thus, laws that resolve issues of one nation, cannot be applied to solve the problems of a different nation. Secondly, constitutional cosmopolitanism[28] wherein it is believed that different cultures of the world are all sub-parts of one big civilisation and thus, even though one legal system is different from another to some extent, the basic set of principles and rules governing human behaviour and the institutions of the state remain the same.

The idea of constitutional cosmopolitanism has led to the development and application of comparative public law in modern times.

Comparative public law can be carried out in the following ways-

  1. The functional method, which is based on the premise that since law is based on society and every society faces similar problems, therefore, the functions of the regulators also remain similar and therefore can be compared.
  2. Structural method, which is based on the comparison of structure of law. It focuses on the internal structure of the legal system and its core elements.
  • An analytical method, which focuses on analyzing the meaning of different aspects of the law. It analyzes how the same concept can be understood in numerous ways.

Further, the process of comparative public law involves the following steps[29]–

  1. Boiling down the issue which needs to be analysed
  2. Understanding the objective of comparison- similarity or differences
  • Choosing the jurisdictions which are to be compared
  1. Selection of comparative elements
  2. Selecting whether there is a need for micro comparison (smaller units) or macro comparison (legal systems)
  3. Understanding the paradigms of comparison like human rights, historical, social, economic, political, cultural and other relevant factors
  • Finally, choose the manner/way in which the comparison is to be carried out functional, structural or analytical.

This concludes the process of comparative public law.

  • CHALLENGES TO COMPARATIVE PUBLIC LAW

The search for optimal constitutional design by the nascent democracies is a general practice. Comparative public law assists in this search. However, there are a number of challenges which are faced while comparing the public law of different jurisdictions. Some of them have been mentioned below[30]–

  1. The lack of understanding or inadequate knowledge about the social, cultural, historical and other factors that influence the legal system
  2. Language in which the knowledge system of law was developed abroad poses a challenge in adequately understanding how the legal issue was dealt with
  • Culture specific experiences cannot be generalized as universally valid
  1. Choice of improper paradigm or wrong premise for comparison
  2. Mere engagement in comparative analysis sometimes fails to provide satisfactory solution to the issue at hand
  3. Difficulty may arise with regard to availability of data, primary and secondary resources.

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[1] Shree Krishna Singh, Economic Justice, JOURNAL OF LEGAL STUDIES AND RESEARCH (2017), https://thelawbrigade.com/tax-laws/economic-justice/ (last visited Jan. 29, 2021).

[2] MONTESQUIEU, DE L’ESPRIT DES LOIS, 1748.

[3] J G Castel, Schwartz: The Code Napolean and the Common Law World, 55 (3) MICHIGAN LAW REVIEW (1957).

[4] The Indian Penal Code, 1860.

[5] Upendra Baxi, Modelling ‘Optimal’ Constitutional Design for Government Structure Some Debutant Remarks, COMPARATIVE CONSTITUTIONALISM IN SOUTH ASIA 23 (2013).

[6] From the United States of America.

[7] Id.

[8] From Ireland.

[9] From Britain.

[10] From Canada.

[11] Supra note 6.

[12] From South Africa.

[13] From the United Kingdom.

[14] From the Fourteenth Amendment of the US Constitution.

[15] State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC75; State of West Bengal v. Subodh Gopal Bose, AIR 1954 SC 92; Saghir Ahmad v. State of UP, 1954 SC 728; Kharak Singh v. State of UP, AIR 1963 SC 1295; Govind v. State of MP, (1975) 2 SCC 148; A.K. Gopalan v. State of Madras, AIR 1950 SC 27; Maneka Gandhi v. Union of India, AIR 1978 SC 597; Bachan Singh v. State of Punjab, AIR 1980 SC 898; Kesavananda Bharati v. State of Kerala, AIR 1974 SC 1461.

[16] Justice K S Puttaswamy v. Union of India, (2017) 10 SCC 1.

[17] The test of legality, legitimate aim and proportionality.

[18] Supra note 16, para K.

[19] Joseph Shine v. Union of India, 2018 SC 1676.

[20] Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.

[21] Common Cause v. Union of India, 2018 5 SCC.

[22] Supra note 19, para 7.

[23] Supra note 20, para N.

[24] Supra note 21, para H.

[25] A T von Mehren, Roscoe Pound and Comparative Law, 13 AM. J OF COMP. L 515 (1964).

[26] Yers S. McDougal, The Comparative Study of Law for Policy Purposes, 1 AM. J. COMP. L 34 (1952).

[27] Geoffrey Wilson, Comparative Legal Scholarship, RESEARCH METHODS FOR LAW 87 (2007).

[28] Sujit Choudhry, Living Originalism in India: Our Law and Comparative Constitutional Law, 25 Yale J.L. & Human 1 (2013).

[29] P Ishwara Bhat, Comparative method of legal research: Nature, process and potentiality, 57(2) JOURNAL OF THE INDIAN LAW INSTITUTE 147 (2015).

[30] Id.

Categories
Blog Intellectual Property Law

Artificial Intelligence and Copyright Protection of Computer-Generated Works

Copyright is a type of intellectual property which provides the exclusive right to the owner to make copies of a creative work, either artistic, literary, dramatic, musical or otherwise. The creator of such creative work, or “author” has the exclusive commercial rights over the work.

Artificial intelligence has great significance in the realm of creative work. Recent successes have demonstrated that AI can independently learn how to perform tasks, prove mathematical theorems, and engage in artistic endeavors such as writing original poetry and music, and painting original works. AI with and sometimes without human assistance is also able to create artistic or innovative works. Therefore, such interplay of AI with the creation of creative work raises certain concerns in the field of copyright law.

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Before understanding the specific issues pertaining to copyright protection of AI generated work, it is pertinent to understand the difference between AI code and AI’s work product. AI code relates to the computer program or algorithm or the source code per se which constitutes AI. This code is what the programmer inputs into an AI. Such code is provided protection under copyright laws of various jurisdictions as TRIPS agreement provides that “Computer programs, whether in source or object code, shall be protected as literary works under the Berne Convention (1971)”[1]. Therefore, the programmer, or the person/entity which buys such AI from the programmer, is considered as the owner of such AI and enjoys the fruits out of copyright protection. On the other hand, AI’s work product relates to the creative product created by the AI. The major legal issue concerns the copyright protection provided to the work created by AI, either with or without human interference.

As discussed above, the AI’s creative work product can further be bifurcated into two categories, one where there is no human intervention, and the other where the programmer has minimal input into the final product. The legal issue pertains to whether in the former situation, the AI can be given authorship over the creative product, and in the latter situation, whether AI can be considered as a co-author of the creative work.

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With respect to the first issue, the jurisprudence developed in different jurisdictions clarify the situation as they unanimously believe that the creative works generated solely by AI are not copyrightable, if such creation does not involve any input or intervention by a human author.

In the United States of America, human authorship is the basic requirement as the Copyright Office reinforced the decision in New Idea Farm. Equip Corp. v. Sperry Corp[2] by holding that it will not register works produced by a machine or mechanical process if there has been no creative input or intervention from a human. Further, in Naruto v Slater[3], the court has opined that a non-human cannot hold copyright and hence cannot sue for infringement of copyright.

In the United Kingdom, the Copyright Designs and Patents Act, 1988 provides that the author of any literary, dramatic, musical or artistic work created by a computer is the person that made the arrangements necessary for the creation of the work undertaken[4]. A computer-generated work has further been defined by the Act as “work generated by computers without any human author of the work”[5].

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India also adopted a similar approach under Section 2(d) of the Copyright Act, 1957 by providing that “in relation to any literary, dramatic, musical or artistic work which is computer-generated, the person who causes the work to be created.”[6] However, it does not contain any explicit exclusion of interference from human author for computer-generated works.

Therefore, the copyright law regime of different jurisdictions expressly mention that the author of a computer-generated work is the person by whom the arrangements necessary for the creation of the work are undertaken.[7] Therefore, intervention by a human is necessary to render the output of an AI copyrightable.

Therefore, AI cannot be an author of the creative work. However, if we take this proposition into consideration, then the next issue arises as to who would be an author of the work created by AI if no human intervention takes place in the process of such creation?

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Let us consider a situation wherein an AI creates an artistic work without any human intervention and this work is infringing the right of another author of same/similar work. Even though work created by AI without any human intervention is not given copyright protection, however, does it imply that others also lose their right to sue for copyright infringement? To resolve such conflicts and the issue of liability arising out of the works created by AI, it is imperative to understand who should be considered the author of the work created by AI, without human involvement.

A possible solution to this issue is the doctrine of principal-agent relationship. If AI is considered as a mere agent of the person (human) who has a control over it, the issue of liability will be resolved. Also, since AI is created by a programmer and it functions according to the algorithms which have been programmed into it by the programmer, such programmer can be considered a principal, and AI be considered as its agent, as AI performs the specific tasks for which it is programmed. In the course of such performance, if the AI creates a creative work, the principal i.e. the programmer can benefit out of such creation, and also be considered liable, in case of any infringement (as principal is vicariously liable for the acts of agents). Further, though compensation is considered an important factor in the principal-agent relationship, and AI cannot be “paid” by the programmer in practical sense, the AI can be considered as a gratuitous agent as a gratuitous agent acts without a right to compensation from the principal. Furthermore, the gratuitous agent owes the same duties of care and loyalty that it would otherwise owe the principal as if it were a standard agent.

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If the AI is sold by the programmer to a third person/entity, such person/entity becomes the principal and enjoys the benefits and the burdens arising out of the creation of AI.

Therefore, although the copyright law regime globally necessitates human involvement or interference for protection of a creative work, the work generated by AI without such human interference should be given protection because firstly, it would provide incentive for further creations of such nature and secondly, it would provide a remedy to the party whose rights have been infringed by the creative work of AI. Thus, the principle of principal-agent relationship between the programmer and the AI can help in addressing these lacunas.

 

[1] Supra note 3.

[2] Supra note 7.

[3] Naruto v. Slater, 2018 WL 1902414.

[4] The Copyright Designs and Patents Act, 1988, s. 9(3) (United Kingdom).

[5] The Copyright Designs and Patents Act, 1988, s. 178 (United Kingdom).

[6] The Copyright Act, 1957, s. 2(d) (India).

[7] Ireland, UK, New Zealand, South Africa, and India.

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Categories
Blog

War Crimes

By:- Disha Mathur

 Worldwide, civilians are being attacked and killed in armed conflict, when do such attacks will be considering illegal?

The concept of war violations was created especially at the conclusion of the 19th century and starting of the 20th century, when universal helpful law, moreover known as the law of outfitted struggle, was codified. The Hague Community war wrongdoings can be found in both universal compassionate law and universal criminal law arrangements, as well as in universal standard law. Particles were received in 1899 and 1907.

A few other related arrangements have been embraced since at that point. war violations must continuously take put within the setting of an outfitted struggle, either universal or non-international. It advanced continually, especially since the conclusion of World War I. War wrongdoings in universal arm clashes are secured by article 8(2)(a) which endorses grave breaches of Geneva Traditions of 12th admirable 1949. War wrongdoings beneath the Worldwide Criminal statute are isolated into four categories: war wrongdoing created assist beneath the umbrella of the Nuremberg Trials based on the definition found within the London Constitution (1945). War wrongdoing could be a genuine breach of universal law committed against civilians. In spite of the fact that the concept of war wrongdoings has old roots, rules on war wrongdoings began to create at the conclusion of the 19th century. The ICTY was given locale over four categories of wrongdoing:

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(1) grave breaches of the Geneva traditions

(2) infringement of the laws or traditions of war

(3) genocide

(4) wrongdoings

Beneath Under  Article 147 of the Fourth Geneva Convention [1]characterizes war violations as “wilful slaughtering, torment or brutal treatment, counting … wilfully causing extraordinary enduring or genuine harm to body or wellbeing, illegal extradition or exchange or illegal control of an ensured individual … taking of prisoners and broad pulverization and apportionment of property, not advocated by military need and carried out unlawfully and wantonly”.

Famous Case:

Jean-Pierre Bemba was charged with the war wrongdoing of starting campaigns of mass assault committed against civilians within the Central African Republic. Within the Ntaganda case, the ICC found sexual wrongdoings committed by individuals of a Congolese outfitted gather against other individuals of the same bunch were war wrongdoings.

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the ICC records the diverse sorts of war wrongdoing which are secured by the Rome Statute, counting but not restricted to the war violations of:

  • Wilful slaughtering, torment, mutilation or obtuse treatment
  • Biological, restorative or logical tests which cause passing or genuinely imperil lives
  • Destruction and apportionment of property
  • A compelling benefit in antagonistic forces
  • Denying a reasonable trial
  • Sentencing or execution without due process
  • Unlawful extradition, exchange or confinement
  • Taking hostages
  • Attacking civilians or civilian objects
  • Attacking staff or objects included in a compassionate help or peacekeeping mission
  • Improper utilisation of a hail of détente or particular symbols of the Geneva Conventions.
  • The law of war wrongdoings comprises of the criminalization of the infringement of the law of equipped struggle (LOAC), [2]too known as worldwide helpful law. War wrongdoings have been happening in India since Britishers took over but the pitiful portion is that it proceeded indeed after independence.
  • Mass migration of Kashmiri Pandits (1990)- In 1990 all the Kashmiri Pandits were given a caution from the amplifiers of the mosques overnight to either change over to Islam or take off Kashmir. All the possessions of Kashmiri Pandits were focused on such as shops, mandirs, etc. Individuals were slaughtered in expansive numbers. Individuals were constrained to take off their homes and their business. Those individuals are still living in destitute conditions. Till date, there’s no remuneration and no equity has been given to the casualties but revocation of Article 370 of the Structure of India.
  • Bengaluru riots (2020)- Horde of thousands of individuals assaulted at the houses of Hindus counting the house of a nearby MLA since his relative shared a blurb of Mohammad on social media.

    Laws related to War Crime in India:

  • Section 120A and 120B of IPC,1860 [3]says that when two or more individuals commit a scheme to do an illicit act.
  • Section 300 of IPC, 1860 [4]characterizes kill and section-302 have the arrangement of detainment for life or passing sentence.
  • Section 295 IPC, 1860 [5]punishes any individual who devastates, harms or difiles any devout put with the purposeful of insulting the religion.
  • Section 436 IPC, 1860 [6]states that any individual who tries to devastate or crushes the property such as house or devout put might be rebuffed with detainment for life.

War violations are not as it was related to violations committed amid war but indeed amid peacetime.  War violations are considered to be among the foremost genuine universal wrongdoings. The meaning of war violations was clarified within the four 1949 Geneva Traditions. Allegations of war violations within the 2006 Lebanon War refer to claims of different bunches and people, counting Absolution Worldwide, Human Rights Observe, and Joined together Countries authorities, who denounced both Hezbollah and Israel of abusing worldwide compassionate law amid the 2006 Lebanon War and cautioned of conceivable war violations. These affirmations included deliberateness assaults on civilian populaces or frameworks, unbalanced or unpredictable assaults in thickly populated private districts.

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Some of the Facts related to War Crime:

  1. According to various media reports, between 1,000 and 1,200 Lebanese citizens were reported dead; there were between 1,500 and 2,500 people wounded and over 1,000,000 were temporarily displaced.
  2. 300,000–500,000 were displaced because of Hezbollah firing tens of thousands of rockets at major cities in Israel.
  3. Even, the conflict in Darfur has been variously characterised as genocide.
  4. In September 2004, the world Health Organisation estimated there had been 50,000 deaths in Darfur since the beginning of the conflict, an 18-month period, mostly due to starvation
  5. In September 2004, the world health Organisation estimated there had been 50,000 deaths in Darfur since the beginning of the conflict, an 18-month period, mostly due to starvation.

The Sri Lankan Civil War

There are charges that war wrongdoing was committed by the Sri Lankan military and the revolt Freedom Tigers of Tamil Eelam amid the Sri Lankan Gracious War, especially amid the ultimate months of the strife in 2009. The affirmed war violations incorporate assaults on civilians and civilian buildings by both sides; executions of combatants and detainees by the government of Sri Lanka; implemented vanishings by the Sri Lankan military and paramilitary bunches supported by them; intense deficiencies of nourishment, medication, and clean water for civilians caught within the war zone; and child enlistment by the Tamil Tigers. The Sri Lankan Government has denied that its powers committed any war wrongdoings and has unequivocally restricted any universal investigation.

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Genocide:

Genocide is considered one of the foremost serious violations against humankind. It implies the consider endeavour to crush a national, ethnic, racial or devout bunch. Genocide may be a crime under worldwide law even if it isn’t wrongdoing within the nation where it takes put, and actuation to commit genocide is additionally wrongdoing.

The International Criminal Court (ICC):

The International Criminal Court (ICC) examines and tries people charged with the foremost genuine violations inside the setting of universal criminal law, counting war wrongdoings.

Conclusion

The repulsions of war were a portion of the nature of war, and recorded cases of war violations go back to Greek and Roman times. Before the twentieth-century armed forces regularly carried on brutally to foe officers and non-combatants alike – and whether there was any discipline for this depended on who inevitably won the war. Individuals are as a rule as it was attempted for war violations in the event that their nation loses the war – a triumphant country once in a while tries it possess individuals for war violations – with the result that war wrongdoings trials can seem like exact retribution trials, and be seen as acts of treachery themselves.

[1] Article 147 of the Fourth Geneva Tradition/ https://www.aljazeera.com/news/2019/10/23/explainer-what-is-a-war-crime

[2] law of equipped struggle (LOAC)/ https://www.genevacall.org/wp-content/uploads/dlm_uploads/2013/11/The-Law-of-Armed-Conflict.pdf

[3] Section 120A and 120B of IPC,1860

[4]  Section 300 of IPC, 1860

[5]  Section 295 IPC, 1860

[6] Section 436 IPC, 1860

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Categories
Blog Intellectual Property Law

Artificial Intelligence and the Patent Regime

The World Intellectual Property Organisation (WIPO) defines intellectual property (IP) as a creation of the mind. Patent, is a type of IP, provides an incentive to individuals to invent and innovate. The patent holder/owner is given exclusive right to make, use, sell and export an invention for a specific period of time.

With the advent of technology, and artificial technology (referred to as AI hereafter) per se, the world has seen a substantial increase in the number of inventions and technologies, created with the help of AI, owing to its potential to increase productivity and efficiency, as compared to its human counterpart. This is apparent from the fact that between 2010 and 2016, there was a fivefold increase in the number of patent applications relating to AI techniques as compared to scientific publications by tech giants like IBM, Microsoft, Hitachi, Panasonic, Samsung, Siemens etc.[1]

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The interplay between AI and patent law has two implications, the first one relates to the patentability of AI itself, and the second one relates to the patentability of inventions created by the use of AI.

The issue of patentability of Artificial Intelligence

Generally, patentability of any invention is subject to certain conditions, which include novelty, industrial application and patentable subject matter. Certain jurisdictions completely prohibit patenting computer programme or algorithms[2] because they come under the exclusive domain of copyright protection[3]. However, in other jurisdictions, software and computer programmes are patentable, but only if they fulfil specific conditions. For example, in China, software invention needs to fulfil the technicality requirement[4]. Similarly, in the United States of America, traditionally patent protection was not provided to software as they were considered abstract ideas, which was outside the purview of USA’s patentable subject matter under the Patent Act, 1977. However, this bar against patenting software was removed by the Court in Alice v. CLS Bank[5] which held that abstract idea implemented on a generic computer may not be patented, but, if the software in question improves “computer functionality” (i.e. improves computing speeds or reduces the number of computing resources required), or performs the computing tasks in an unconventional way, then it may be patentable.

Therefore, it can be seen that the issue of patentability of AI per se differs from jurisdiction to jurisdiction, wherein few nations are more willing to provide patent protection to certain types of software, while others continue to bring it under the exclusive domain of copyright protection.

The issue of patentability of inventions created by artificial intelligence

Artificial intelligence, in the past decades, has played a major role in assisting humans by performing certain specific tasks, assigned to them, by means of algorithms set by humans. This process also inculcates the use of AI in creating innovations and inventions. However, the way in which AI aids in the creation of such invention, differs. Broadly, there are three ways in which AI can play a role in creating inventions. At one end, AI could simply act as a tool in assisting a human inventor without contributing to the conception of an invention. On the opposite side of the spectrum, as AI is not bound by the limits drawn to it, it could autonomously generate outputs that would be patentable inventions, if created by a human. Alternatively, AI could also fall in between these two extreme ends, for example, it could be used to generate several possible solutions under the guidance of humans who define the problems and select successful solutions.

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The legal regime governing the patent system in different jurisdictions highlight that there is no bar to granting a patent for an invention created or generated by an AI. However, such invention would nevertheless have to satisfy the statutory requirements for being eligible for patentability i.e. novelty, industrial application and patentable subject matter. However, the issue arises at the time of filing a patent application.

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Before understanding the issue, it is important to understand the concept of inventorship and ownership. Inventorship is determined by “conception, or the formation in the mind of the inventor of a definite and permanent idea of the complete and operative invention.”[6] Ownership, on the other hand, lies with someone who exploits the commercial benefits arising out of such invention. Further, patent ownership is generally tied to inventorship, unless another entity has a superior right, such as through employment or contract. Therefore, since the invention is a creation of the mind, and encompasses certain rights and liabilities, all the jurisdictions around the world unanimously agree to the fact that an inventor can only be a natural person/s and not even an artificial person. Further, with respect to ownership, it is considered that both a natural person and an artificial person, like a company, can have ownership rights over the invention.

Taking into account the developments in the field of AI which now enable it to autonomously generate new inventions, serious concerns can be raised about whether AI can be termed as an “inventor”. Recently, both Google and Facebook have seen their respective Al systems develop new languages to perform the assigned tasks, eschewing known human languages in favour of a more efficient one.

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Let us consider the situation where an invention is generated autonomously by an AI (the one side of the spectrum). If such AI is considered the inventor, then by virtue of being an inventor and not being bound by a formal contract of employment, it also becomes the owner of such invention and possesses the rights to sell its invention to other natural persons/companies for profits. However, does AI has the capacity to negotiate terms for commercial purposes and provide consent for such transactions. It should also be borne in mind that the entire premise of the patent is based on the very idea of commercial exploitation of invention for a limited period of time. This provides an incentive for innovation and inventions. Therefore, if the idea of commercial exploitation is subtracted from patent, what remains is charity, and charity does not drive investments into further inventions by the use of AI. This is the very reason why the courts in different jurisdictions are reluctant in interpreting “inventor” as to include AI[7]. Such a step would create a lacuna with respect to firstly, the practical implications of such step, secondly, the idea of incentive under the patent regime and lastly, the issue of attributing rights to AI and liability, in case of any dispute. This situation is beautifully highlighted by the recent case[8] wherein Stephen Thaler applied to the patent offices of the United Kingdom, Europe and the U.S.A. for patentability of an invention invented by the AI machine “DABUS”. Mr. Thaler mentioned “DABUS” in place of the name of the inventor and his name in place of the name of the owner. The patent offices of these jurisdictions rejected this application on the ground that an AI cannot be an inventor as the statutory requirements mandate inventor to be a natural person, and that AI can neither be employed (as Mr Thaler mentioned himself as owner stating that DABUS is his property), nor hold intellectual property rights. Therefore, the situation with respect to the patentability of inventions created solely by AI is clear, i.e. AI cannot be an inventor under the law.

When we consider the situation wherein AI acts just as a tool or plays a more active role in the process of innovation and invention, certain scholars believe that AI could be considered as a co-inventor. However, mentioning the name of an AI as an inventor in the patent application would also be futile as the courts have come to the conclusion that only a natural person can be an inventor.

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However, having said that AI cannot be considered as an inventor, it does not imply that the creation of AI cannot be patented. To address this issue, one of the theories propose that the owner of the AI which created an invention should be considered as the inventor of the inventions created by AI which it owns. However, such patentability would still be subject to the statutory requirements of different jurisdictions. This theory implies that AI is just a mere tool or machine which aids humans to perform specific functions. Since the actions of the AI are prompted by humans, such humans should be considered the real “mind” behind any innovation created by such AI, while performing its functions. This theory seems to work perfectly well as it solves the issue of the inventor being a natural person, the issue of attributing liability, and the issue of negotiating for commercial purposes. This would also imply an increase in investment in AI for creating more of such inventions, in which the owner of such AI is considered the inventor of such invention.

[1] Pankaj Soni, How Is the Patent World Responding to the AI Revolution, 281 MANAGING INTELL. PROP. 48 (2019).

[2] Like Indian Patent Act, 1970, s. 3(k).

[3] Trade related aspects of Intellectual Property Rights, Art. 10 [Source or object code, shall be protected as literary works under the Berne Convention (1971)].

[4] PATSNAP, https://www.patsnap.com/resources/blog/which-countries-allow-software-patents/ (last visited Jan. 29, 2021).

[5] Alice v. CLS Bank Int’l, 573 U.S. 208, 225-26 (2014) [Holding that “the abstract idea implemented on a generic computer” may not be patented]

[6] Townsend v. Smith, 36 F.2d 292, 295; Hybritech Inc. v. Monoclonal antibodies inc., 802 F. 2d 1367, 1376.

[7] New Idea Farm. Equip Corp. v. Sperry Corp., 916 F.2d 1561 (Fed. Cir. 1990) [The court stated that only people conceive ideas and not machines].

[8] Stephen L Thaler v. The Comptroller-General of Patents, Design and Trade Marks, [2020] EWHC 2412 (Pat).

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Role of Private Equity in the Construction Industry

By: Divya Tandon

What is Private Equity Investment?

Private Equity is one of the methods of financing an entity wherein capital is invested by private set of investors into a business in return for equity in the company wherein the capital is invested.

Private Equity investors are generally leveraged buyout funds, growth equity funds, venture capital funds, real estate investment funds, special debt funds or individuals having high net worth etc.

Private Equity Investors provide funding to the companies they invest in which help in meeting the capital requirements of the companies for funding their projects, pay off existing debts, solidifying the balance sheet, launching new projects etc.

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Due to huge size of investment, private equity investors often get involved in the functioning of the company and have a significant control and decision making rights in the company they invest in. The Private equity investors uses their enormous experience and skills to manage and improve the operations and revenue of the investee company over a period of time. The intent of the private equity investors is to improve the worth of the company so that they can later sell their stake for more than it was when they bought it thereby making profit.

Importance of Private Equity in the Construction/Real estate industry

The construction companies/firms require huge funds for their projects. Most companies/firms are not self-sufficient to fund their projects on their own. Hence, they look for alternative investment options to fund their projects. The construction companies can approach the banks for availing loans, look for joint venture partners, find suitable individual investors willing to invest in the form of equity or debt or private equity firms willing to invest in the company.  Since, huge funds are required by construction companies, most of the times the companies adopts more than one of the investment options to fund their projects.

Earlier, private equity investors used to avoid investment in construction industry due to certain inherent risks.  However, in recent years investment by Private Equity investors has gained momentum. The enactment of Real Estate (Regulation and Development) Act, 2016 (“RERA Act”) which has come into force with effect from May, 2017 has also made developers more accountable as their acts are now regulated by the RERA Authority. The RERA Act is more stringent as compared to previous legislation which has been brought to eradicate the problems that were inherent in the real estate sector. The RERA Act ensures transparency with respect to real estate transactions. Heavy penalties are imposed on the developers for violation of the provisions of the RERA Act or the terms and conditions of the agreement executed with the customers. Hence, RERA has brought in positive transformation in the real estate sector and boosted the confidence of private equity investors to invest in this sector.

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Besides the enactment of RERA Act, various other government policies and schemes have led to surge in investor interest in the real estate sector including foreign investors. Some of the policies of the government which has boosted private equity investment in construction industry are easing of FDI regulations, Housing for All, Affordable Rental Housing Complex Scheme, Credit Linked Subsidy Scheme (CLSS) to name a few.

Private Equity firms often fund real estate companies and provide financial support in development of real estate projects. Private equity investment provides the required liquidity to the company for its projects and provide support in launching new projects or to complete the pending projects. After enactment of RERA, the developers prefer completing their projects as per the agreed timelines to avoid payment of interest on the amounts paid by the customers. But due to liquidity crunch, sometimes the developers struggle with the available capital to complete the ongoing projects and provide possession to the customers. In such a scenario, the private equity investors come to the aid of the construction companies to provide last stage funding. Thus, the demand for funds in the last stages of completion of projects have risen. The last stage funding is also favorable for the private equity investors as it is comparatively less risky as during the last stages of construction generally necessary approvals are in place and construction is on the verge of completion. However, the private equity investors should ensure proper due diligence to understand the reason for the project being stalled. If the project is stalled only due to financial crunch, the investment by the private equity investors can help in reviving and completing the project and provide benefit to the investors by maximizing their value. On the other hand if the project where the private equity investor is considering to invest is stalled due to some third party dispute or pending litigations then the funding by private equity investors may not solve the problem and the project may not be completed as per the estimated timelines. This may result in the investment of private equity investors getting stuck.

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“Post the liquidity crisis in NBFCs in Q4 2018, private equity players including the domestic ones have become increasingly active once again and are expected to bridge the funding gap”[1]

In recent years, private equity investors are funding some major projects. The investment by private equity investors is not only in residential projects, but also in commercial and retail projects.  Due to the private equity investment, some of the stalled projects have been able to see the light of the day and have been completed, providing much needed relief to the customers who had invested in such projects.

Depending on the size of investment, the private equity investors get involved in the decision making process. The level of influence depends on the stake invested. They provide their inputs through out the development process and act as strategic partners.

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Impact of Covid-19 on the private equity investment in the construction industry

Due to the outbreak of the global pandemic Novel Corona Virus – COVID-19 in March, 2020, the current financial markets, trade, commerce and thereby business continuity is facing an unprecedented situation due to lockdown imposed by the central and state governments from time to time to curtail the spread of the deadly virus. This pandemic has paralyzed and destroyed the very economic fabric of the entire world including India.  Both the Central Government as well as State Governments had placed severe restrictions and implemented various remedial measures in an all-out effort to halt the spread of the virus.

The impact of the Covid-19 is thus a calamity and the adverse consequences on the Real Estate Industry is serious and has impacted the business severely. As a fall out of the above, there is total disruption in the supply–chain of materials, shutdown of construction activities due to huge shortage of construction materials in the market on supply–chain issues due to import restrictions, global manufacturing, shutdown of materials, heavy escalation in prices of materials etc. The site labourers had returned back to their native homes/villages due to the fear of contracting the virus due to which construction sites had either substantially slowed down or had come to a grinding halt. Since the real estate as an Industry being the most labour intensive, being extremely reliant on hundreds of materials coming from everywhere in projects and reliance on stable financial inflows into the projects; all these either being slowed / unavailable / stalled in most projects, severely affected current ongoing projects of the most real estate developers. The sale of residential/commercial premises had also been affected due to liquidity crunch in the market.

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It is also learnt that across the real estate industry, almost 60% – 65% of flat purchasers are defaulting in paying their due instalments to the companies towards the flats booked by them thereby further adversely affecting the business of the construction firms. The developers however on the other hand are without any respite/remedy in terms of payment of instalments towards huge loans taken from banks as well as payment of taxes and premiums to the various departments of the Government. Under these facts and circumstances, where on the one hand the payments are not being made by customers/purchasers, the construction work being affected and standstill due to the supply chain being disrupted and the workers unable to come to work, whereas the developers having to make payments towards service of finance loans, taxes, premiums etc. entire real industry is under the grave stress.

The outbreak of the Covid-19 and the forced lockdown (by the competent Government/Authorities) pursuant thereto, was a sudden setback to real estate sector which was already going through a rough patch due to low demand. Thus the construction industry is facing challenging times due to the drastic impact of the pandemic. The real estate industry is facing financial crunch to launch new projects and also to finish ongoing projects. Though, the restrictions have been relaxed by the governments, the impact of the Covid-19 and lockdown will be felt for months to come. Many construction companies are on the verge of bankruptcy. In such a scenario, private equity investors can come to the rescue of the severely hit real estate entities/firms.

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In recent times many private equity investors are in negotiation talks with construction companies to provide much-needed funding for their projects.

Recent trends

“Indian real estate attracted U$ 5 billion institutional investments in 2020, equivalent to 93% of transactions recorded in the previous year. Investments from private equity (PE) players and VC funds reached US$ 4.06 billion in 2020. The real estate segment attracted private equity investments worth Rs. 23,946 crore (US$ 3,241 million) across 19 deals in Q4 FY21. Investments in the sector grew 16x compared with Rs. 1,470 crore (US$ 199 million) in Q4 FY20. In value terms, these investments were 80% of that in 2020 and 48% of 2019, according to a report by Knight Frank”[2]

As per the reports from the property consultant, Savills India “Private equity investment inflows into the Indian real estate sector stood at $2.7 billion during the first half of 2021 as investors’ confidence remained intact despite the pandemic-induced slowdown. This inflow is equivalent to 41 per cent of the investment that the sector saw in the entire year of 2020. However, in the second quarter of 2021, Indian real estate market saw an investment of $865 million, a 54 per cent decline from the previous quarter.”[3]

As per Colliers’ report Investments Turbocharged with Focus on Alternate Assets Classes “Despite COVID-19, the total expected private equity inflows in the Indian real estate sector is expected to touch $5 billion in 2021, a 4.1 percent increase from 2020” [4]

As per ICRA estimates, Indian firms are expected to raise more than Rs. 3.5 trillion (US$ 48 billion) through infrastructure and real estate investment trusts in 2022, as compared with raised funds worth US$ 29 billion to date.[5]

According to the data released by Department for Promotion of Industry and Internal Trade Policy (DPIIT), construction is the third-largest sector in terms of FDI inflow. FDI in the sector (including construction development & activities) stood at US$ 50.8 billion between April 2000 and March 2021.[6]

Thus it can be seen from the above that the private equity investors both domestic and foreign have gained confidence in the Indian construction industry and have joined hands with some of the major construction companies to boost the growth of the sector.

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[1] As per the report of Savills on Private Equity in Indian Real estate

[2] https://www.ibef.org/industry/real-estate-india.aspx

[3] https://economictimes.indiatimes.com/news/india/indian-realty-attracts-2-7-billion-private-equity-investments-in-january-june-report/articleshow/84339543.cms?from=mdr#:~:text=Private%20equity%20investment%20inflows%20into,from%20property%20consultant%20Savills%20India.

[4] https://www.moneycontrol.com/news/business/real-estate/no-covid-19-impact-private-equity-inflows-into-indian-real-estate-sector-to-touch-5-billion-in-2021-7195641.html

[5] https://www.ibef.org/industry/real-estate-india.aspx

[6] https://www.ibef.org/industry/real-estate-india.aspx

 

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Analysis of Data Protection and Privacy Laws in India and U.K.

By:- Chaitanya Anil Yadav

  1. Data Protection and Privacy Law

According to Yves Poullet, more than 1.5 billion people use the internet and email nowadays, owing to the fast expansion of information technology and the population of internet users. Information technology will be increasingly utilised to acquire personal information, having both positive and negative effects for individuals (Dinev and Hart, 2006). The internet has provided us with several benefits while also putting our privacy in danger. On the internet, our information is disseminated widely. When you conduct online shopping, for example, you may be concerned about whether they retain your personal information and credit card data for any other reason or whether giving the information is secure. Are you perplexed as to why you are being bombarded with spam? Have you heard on the news that a bank’s network was hacked, and credit card and customer information was stolen? When we go online, there are possible privacy dangers and hazards. We need to be aware of these threats and risks, and we need to improve our privacy self-protection knowledge. Data security has always been a priority. It’s why individuals secure their file cabinets with locks and hire safe deposit boxes at their institutions. Data privacy is becoming increasingly important as more of our data is digital and we share more information online. A single corporation may have the personal information of millions of clients—information that must be kept hidden for consumers’ identities to remain safe and secure, and the company’s reputation to remain unblemished. However, data security isn’t simply a commercial problem. When it comes to data privacy, you, as an individual, have a lot on the line.

  1. History of Data Protection and Privacy Law.

Data privacy laws have existed for far longer than you may recall. Find out how data privacy regulations have evolved in the contemporary era as the GDPR approaches implementation. The General Data Protection Regulation (GDPR) will become fully operational. It is by no means the first data privacy law, and while it is the most comprehensive piece of regulations on the subject to date, it is unlikely to be the last. Let’s take a look back at the many current data privacy regulations that have been established over the years as the GDPR gets closer. The First Modern Data Privacy Laws were enacted in the 1970s. In response to worries about computer breakthroughs and privacy in the processing of personal data, the first contemporary data privacy regulation was enacted in Hesse, Germany. The Data Act, enacted in 1973, was the first national privacy law, criminalising data theft and granting data subjects access to their information.

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In Germany, the right to informational self-determination was established in 1983.

The German Federal Constitutional Court concluded in a landmark decision concerning the intrusive nature of a national census survey that people had a basic human right to self-determination over their data. Individuals should be safeguarded from the unrestricted acquisition, storage, use, and disclosure of their data, according to the judgement. In 1995 – The EU Data Protection Directive is enacted. The European Union enacted the Data Protection Directive, which imposed minimum standards of personal data protection on member states and protected individuals’ rights regarding the movement of personal data between EU member states as computer technology advanced and the free flow of information became more widespread. Individuals have access rights, as well as access to supervisory agencies, and data may be moved outside of the EU as long as “an acceptable degree of protection” was provided. However, each EU member state executed the legislation differently, resulting in some nations having weaker rules and supervision.

The Safe Harbor Accord was signed in the year 2000. This was a collection of principles intended to reconcile the disparities in data privacy regulations between the US and the EU to improve information flow between the two areas. They were eventually declared unlawful by the European Court of Justice in 2015 because US intelligence services had unlimited access to EU persons’ data under US law. The EU-US Privacy Shield was implemented in 2016 to replace Safe Harbor, but its future is uncertain.2016 is the year of the General Data Protection Regulation (GDPR).

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Organizations all around the globe have been granted a two-year head start to upgrade security measures and processes in readiness for the most comprehensive set of data protection regulations yet. The legislation includes a right to be forgotten for data subjects, affirmative permission, thorough and timely data breach notifications, simple language for terms of service agreements, and sanctions of up to 4% of an organization’s total worldwide annual turnover if found in violation.

  1. Data Protection and Privacy Law in India.

After more than two years of heated discussion, the Indian government finally tabled the Personal Data Protection Bill in Parliament on December 11, 2019. Rather than pressing for speedy passage of this highly important law, India’s information technology minister, Ravi Shankar Prasad, sent it to a joint parliamentary committee for review. After the committee issues its report on the law, it will be considered in the Indian Parliament in 2020, with the ruling coalition certain to win a large majority in both chambers. As India attempts to establish a comprehensive data governance framework, this law has far-reaching consequences for practically every firm trying to do business in India. India has a unique capacity to exert pressure over multinational digital firms and impact global policy due to its population size, gross domestic product, and the flood of new internet users.

During the proceedings in the K.S. Puttaswamy vs. Union of India (2017) “right to privacy” case, the narrative around data protection in India reached a peak. A nine-judge bench of the Supreme Court of India affirmed the right to privacy as a fundamental right in a landmark decision. The Indian government formed an expert group to develop India’s data protection policy throughout the case. The committee presented a draught Personal Data Protection Bill and an accompanying report, titled “A Free and Fair Digital Economy: Protecting Privacy, Empowering Indians,” after a public consultation on a white paper. Many of the consent-related clauses of India’s data protection law seem eerily similar to the General Data Protection Regulation of the European Union (GDPR). To acquire personal data, companies defined as data fiduciaries must get agreement from the persons whose data is in concern, according to the new Indian bill. Data fiduciaries are defined as any business that determines the “purpose and methods of processing personal data,” a broad description that may include everything from ride-hailing applications to social media platforms to data brokers that purchase and sell consumer data.

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These safeguards show that the Indian government is concerned with both protecting the rights of Indian data subjects and reducing the massive power disparity that now exists between major technology companies and ordinary Indian people when it comes to data collecting. However, it remains to be seen how that connection will play out between individuals and the government, not only between companies and individuals. For example, when government organs judge data collection and usage relevant to state operations, the various loosely stated exclusions on data legislation might permit types of monitoring. To allow data to be copied into a country, the destination country must provide enough privacy protections for the data and not prevent Indian law enforcement from accessing it. India isn’t unfamiliar with the need for localised data storage. Rather, they would be used to enhance existing policies. The Reserve Bank of India’s (India’s central bank) mandate for local storage of payment data is the most significant of the existing safeguards. Attempts have been made by major technology companies such as WhatsApp Pay, Google Pay, Mastercard, and other payment providers to comply with the new Reserve Bank rule. Finally, the government made care to include Section 91, which states that the government maintains the right to interpret any rules for the benefit of India’s digital economy as long as it does not entail the use of personally identifiable information. The government can also order data collectors to provide up anonymized personal information or other “non-personal data” for “evidence-based policy-making,” according to Section 91(2). There hasn’t been much clarification on what it would entail.

  • Information Technology Act, 2000: It provides for safeguards against certain breaches about data from computer systems. It contains provisions to prevent the unauthorized use of computers, computer systems and data stored therein.
  • Personal Data Protection Bill 2019: The Supreme Court maintained the right to privacy as a fundamental right in the landmark decision of K.S. Puttaswamy v. Union of India 2017 after which the Union government had appointed Justice B.N. Srikrishna Committee for proposing skeletal legislation in the discipline of data protection. The Committee came up with its report and draft legislation in the form of the Personal Data Protection Bill, 2018. In 2019, Parliament again revised the Bill and much deviation from the 2018 Bill was evident. The new Bill was named as Personal Data Protection Bill, 2019. The purpose of this Bill is to provide for the protection of privacy of individuals relating to their Data and to establish a Data Protection Authority of India for the said purposes and the matters concerning the personal data of an individual.

Data Protection and Privacy Law in the U.K.

The Data Protection Bill was enacted in May of 2018, and before that, the United Kingdom regulated the Data Protection Act or DPA 1998, which was enacted with the adoption of the Data Protection Directive into national law on March 1, 2000. The Privacy and Electronic Communications Regulations (PECR) 2003 play a role in company operations, and modifications to the regulation of direct marketing have been enacted. According to assignment help UK experts, it includes the processing of location and traffic data, as well as the use of cookies and other similar technologies. The European Commission has suggested a draught Regulation on Privacy and Electronic Communications to replace the existing ePrivacy Directive (Raul, 2018). The regulation is supplemented by the ePrivacy Regulation, which has direct implications for all Member States, including the UK. Its goal is to offer marketing guidelines based on cookies from websites to industry-specific regulations. The ePrivacy rules need to be updated, and these are the modifications that must be made. It necessitates a clear and affirmative action to grant permission to cookies. It tries to encourage the burden of shifting and seeks agreement from website browsers to utilise cookies.

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The Act is divided into seven sections. Section 1 explains them in detail. This Act regulates the handling of personal information. The GDPR governs the majority of personal data processing. Part 2 adds to the GDPR (see Chapter 2) by imposing a substantially comparable rule on some forms of processing that are not covered by the GDPR (see Chapter 3). Part 3 implements the Law Enforcement Directive and establishes provisions for the processing of personal data by competent bodies for law enforcement purposes. Part 4 deals with the intelligence services’ handling of personal information. Part 5 specifies the role of the Information Commissioner. Part 6 outlines the procedures for enforcing data protection regulations. Part 7 contains supplemental provisions, including information regarding how this Act applies to the Crown and Parliament.

The Act creates new offences such as intentionally or carelessly collecting or revealing personal data without the data controller’s consent, procuring such disclosure, or keeping data obtained without consent. It would also be illegal to sell or offer to sell personal data that had been intentionally or recklessly collected or exposed. In essence, the Act implements the EU Legislation Enforcement Directive, it applies those portions of the GDPR that “must be decided by Member State law,” and it provides a framework comparable to the GDPR for the processing of personal data that is not covered by the GDPR. This includes the processing of personal data stored in unstructured form by public authorities, as well as the processing of intelligence services, immigration services, and personal data held in unstructured form by public authorities.

The GDPR will be integrated directly into domestic law once the UK quits the European Union under section 3 of the European Union (Withdrawal) Act 2018.

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The Information Commissioner’s Office’s enforcement of the Act is aided by the Data Protection (Charges and Information) Regulations 2018, which impose a data protection fee on UK data controllers. Some companies and non-profits’ internal core objectives (staff or members, marketing and accounting), home affairs, some public reasons, and non-automated processes were all exempted from the fee. The registration enforcement system was shifted from criminal to civil monetary penalties under the 2018 Act.

The Data Protection Act of 2018 is an update to the Data Protection Act of 1998, emphasising the need for companies to be more responsible with information and enhancing confidentiality. The latter amendment also operates in combination with the GDPR, which was not the case with the Data Protection Act of 1998. The following are the major changes from the Data Protection Act (1998) to the Data Protection Act (2018) The Data Protection Act’s right to erasure exclusions are being regulated in line with the GDPR. The enforced Regulations of May 25, 2018, were going to be applied to the Member States and would continue to be directly applicable in the United Kingdom. The Queen’s address in 2017 reiterated that the United Kingdom will remain an EU member state, and the Regulations will take force, with the Government intending to propose legislation to implement the Regulation. There is a bill that is expected to pass after the Brexit period. The law is about the requirements for implementing the proposed Data Protection Bill’s Regulation. The New Data Protection Bill draught was expected to be released in 2017, and the UK government would be reforming the data protection legislation based on the Regulations.

Conclusion

Data is a vital resource in the digital era that should not be left uncontrolled. In this environment, India’s time for a strong data protection regime has arrived. The Personal Data Protection Bill, 2019, has to be amended as soon as possible. It has to be rewritten to ensure that it emphasises user privacy while focusing on user rights. To enforce these rights, a privacy commission would need to be formed. The government would also have to protect people’s privacy while bolstering their access to information. Furthermore, technology advances achieved in the previous two to three years must be addressed, as they have the potential to flip the world upside down. It’s like wielding a two-edged blade. While it protects Indians’ personal data by giving them data primary righto grants the central government exemptions that are contrary to the principles of processing personal data.When necessary, the government can process even sensitive personal data without the data principals’ explicit agreement. So, while following the foreign legislation of the United Kingdom or the United States in its entirety would not be a viable solution, a comprehensive data protection law is the need of the hour in India. Distinct types of data should be divided into different categories, and different levels of security should be offered to different types of data. However, this should be incorporated in a single act. India’s strategic goal is likely to be in ensuring that it fulfils its constitutional obligation to its people, prioritising citizen rights and economic well-being over purely commercial or bureaucratic objectives. However, it is unclear if this goal is met, owing to concerns about exclusions in the wording of the Personal Data Protection Bill. It remains to be seen if the policymaking pendulum swings in the correct direction when the Joint Parliamentary Committee begins debates on the bill draught.

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