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INTELLECTUAL INTELLECTUAL
PROPERTY RIGHTS PROPERTY RIGHTS
By By
Preeti Patel Preeti Patel
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Intellectual property laws and enforcement vary Intellectual property laws and enforcement vary
widely from jurisdiction to jurisdiction. widely from jurisdiction to jurisdiction.
Intellectual property laws confer a bundle of Intellectual property laws confer a bundle of
exclusive rights in relation to the particular form exclusive rights in relation to the particular form
or manner in which ideas or information are or manner in which ideas or information are
expressed or manifested, and not in relation to expressed or manifested, and not in relation to
the ideas or concepts themselves the ideas or concepts themselves
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TYPES OF IPR TYPES OF IPR
The term Intellectual Property" denotes the The term Intellectual Property" denotes the
specific legal rights specific legal rights
1. 1. Copyrights (e.g. book) Copyrights (e.g. book)
2. 2. Patents (e.g. new drug) Patents (e.g. new drug)
3. 3. Trademark (e.g. symbol) Trademark (e.g. symbol)
4. 4. Trade Secrets (e.g. new method) Trade Secrets (e.g. new method)
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Copyright Copyrightmay subsist in creative and artistic may subsist in creative and artistic
works (e.g. books, movies, music, paintings, works (e.g. books, movies, music, paintings,
photographs, and software) and give a copyright photographs, and software) and give a copyright
holder the exclusive right to control eproduction holder the exclusive right to control eproduction
or adaptation of such works for a certain period or adaptation of such works for a certain period
of time (historically a period of between 10 and of time (historically a period of between 10 and
30 years depending on jurisdiction, more 30 years depending on jurisdiction, more
recently the life of the author plus several recently the life of the author plus several
decades). decades).
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Patent Patent
A patent A patentis a right to gives the patent holder to is a right to gives the patent holder to
prevent others from practicing the invention prevent others from practicing the invention
without a license from the inventor for a certain without a license from the inventor for a certain
period of time (typically 20 years from the filing period of time (typically 20 years from the filing
date of a patent application). date of a patent application).
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Trade Mark Trade Mark
A trademark A trademarkis a distinctive sign which is used is a distinctive sign which is used
to distinguish the products or services of to distinguish the products or services of
different businesses. different businesses.
An industrial design An industrial designright protects the form of right protects the form of
appearance, style or design of an industrial appearance, style or design of an industrial
object (e.g. spare parts, furniture, or textiles). object (e.g. spare parts, furniture, or textiles).
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A trade secret A trade secret("confidential information") is ("confidential information") is
secret, non secret, non--public information concerning the public information concerning the
commercial practices or proprietary knowledge commercial practices or proprietary knowledge
of a business, public disclosure of which may of a business, public disclosure of which may
sometimes be illegal sometimes be illegal
Patents, trademarks, and designs rights are Patents, trademarks, and designs rights are
sometimes collectively known as sometimes collectively known as industrial industrial
property property, as they are typically created and used , as they are typically created and used
for industrial or commercial purposes. for industrial or commercial purposes.
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Copyright Copyright (e.g. books, paintings, films) (e.g. books, paintings, films)
1. 1. Protects the work of expressions, not the ideas ( ie. the Protects the work of expressions, not the ideas ( ie. the
form a creator/ publisher gives to ideas). Limited form a creator/ publisher gives to ideas). Limited
protection against substitute. protection against substitute.
2. 2. Protection focuses on copying Protection focuses on copying
3. 3. Long but limited protection (life + 50years in Canada) Long but limited protection (life + 50years in Canada)
4. 4. Covers original work of authorship in a tangible Covers original work of authorship in a tangible
medium of expression (e.g. book) medium of expression (e.g. book)
5. 5. Registration is inexpensive. Copyrights are easy to Registration is inexpensive. Copyrights are easy to
obtain obtain
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Patents Patents(i.e. inventions) (i.e. inventions)
1. 1. Protect the ideas, not just expressions Protect the ideas, not just expressions
2. 2. Registration is necessary (patent office) Registration is necessary (patent office)
3. 3. Requirements: utility, novelty, non Requirements: utility, novelty, non--obviousness. obviousness.
Difficult to obtain Difficult to obtain
4. 4. Short protection periods but greater protection Short protection periods but greater protection
against infringers against infringers
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Trademarks Trademarks(e.g. brand names, product logos) (e.g. brand names, product logos)
Protect symbols and phrases Protect symbols and phrases
Registration is not necessary but easy Registration is not necessary but easy
Protection periods vary Protection periods vary
Distinctiveness is required Distinctiveness is required
Trade Secrets Trade Secrets(e.g. formula, program, (e.g. formula, program,
technique, method, process) technique, method, process)
Derives independent economic value from not being known Derives independent economic value from not being known
Registration is not required. Perpetual protection is possible Registration is not required. Perpetual protection is possible
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Intellectual Property Rights in India Intellectual Property Rights in India
There is a well There is a well--established statutory, administrative and established statutory, administrative and
judicial framework to safeguard intellectual property judicial framework to safeguard intellectual property
rights in India, whether they relate to patents, rights in India, whether they relate to patents,
trademarks, copyright or industrial designs etc. trademarks, copyright or industrial designs etc.
Well Well--known international trademarks have been known international trademarks have been
protected in India even when they were not registered protected in India even when they were not registered
in India. in India.
The Indian Trademarks Law The Indian Trademarks Lawhas been extended has been extended
through court decisions to service marks in addition to through court decisions to service marks in addition to
trade marks for goods. trade marks for goods.
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Features Features
IPR are property rights over information, knowledge and ideas IPR are property rights over information, knowledge and ideas
IPR are exclusive, trade able and temporary IPR are exclusive, trade able and temporary
IPR differ in the information being protected IPR differ in the information being protected
(copyright, patent, trade secrets, trademarks) (copyright, patent, trade secrets, trademarks)
IPR protect information that has public good characteristics IPR protect information that has public good characteristics
(non (non--excludability and non excludability and non--rivalry consumption rivalry consumption))
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IPR : Digital Era IPR : Digital Era
Computer software companies have successfully Computer software companies have successfully
curtailed piracy through court orders. curtailed piracy through court orders.
Computer databases have been protected. Computer databases have been protected.
The courts, under the doctrine of breach of The courts, under the doctrine of breach of
confidentiality, accorded an extensive protection of confidentiality, accorded an extensive protection of
trade secrets. trade secrets.
Right to privacy, which is not protected even in some Right to privacy, which is not protected even in some
developed countries, has been recognized in India. developed countries, has been recognized in India.
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IP, protected through law, like any other form of IP, protected through law, like any other form of
property can be a matter of trade, that is, it can be property can be a matter of trade, that is, it can be
owned, bequeathed, sold or bought. owned, bequeathed, sold or bought. The major The major
features that distinguish it from other forms are their features that distinguish it from other forms are their
intangibility and non intangibility and non--exhaustion by consumption. exhaustion by consumption.
IP is the foundation of knowledge IP is the foundation of knowledge--based economy. based economy.
It pervades all sectors of economy and is increasingly It pervades all sectors of economy and is increasingly
becoming important for ensuring competitiveness of becoming important for ensuring competitiveness of
the enterprises. the enterprises.
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International Organizations & Treaties International Organizations & Treaties
A UN agency, namely, World Intellectual A UN agency, namely, World Intellectual
Property Organization (WIPO) based in Geneva Property Organization (WIPO) based in Geneva
administers treaties in the field of intellectual administers treaties in the field of intellectual
property. property. India is a member of WIPO. India is a member of WIPO.
Department of Industrial Policy & Promotion is Department of Industrial Policy & Promotion is
the nodal Department in the Government of the nodal Department in the Government of
India for all matters concerning WIPO. India for all matters concerning WIPO.
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India is also a member of the World Trade India is also a member of the World Trade
Organization (WTO). Organization (WTO).
The WTO agreement on Trade Related Aspects of The WTO agreement on Trade Related Aspects of
Intellectual Property (TRIPS) . Intellectual Property (TRIPS) .
This Agreement made protection of intellectual This Agreement made protection of intellectual
property an enforceable obligation of the Member property an enforceable obligation of the Member
States. States.
TRIPS Agreement sets out minimum standards of TRIPS Agreement sets out minimum standards of
intellectual property protection for Member States. intellectual property protection for Member States.
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1.The Patents (Amendment) Act, 1999 passed by the 1.The Patents (Amendment) Act, 1999 passed by the
Indian Parliament on March 10, 1999 to amend the Indian Parliament on March 10, 1999 to amend the
Patents Act of 1970 that provides for establishment of Patents Act of 1970 that provides for establishment of
a mail box system to file patents and accords exclusive a mail box system to file patents and accords exclusive
marketing rights for 5 years. marketing rights for 5 years.
2. 2. The Trade Marks Bill, 1999 which repeals and The Trade Marks Bill, 1999 which repeals and
replaces the Trade and Merchandise Marks Act, 1958 replaces the Trade and Merchandise Marks Act, 1958
passed by the Indian Parliament in the Winter Session passed by the Indian Parliament in the Winter Session
that concluded on December 23, 1999. that concluded on December 23, 1999.
3. 3. The Copyright (Amendment) Act, 1999 passed by The Copyright (Amendment) Act, 1999 passed by
both houses of the Indian Parliament, and signed by the both houses of the Indian Parliament, and signed by the
President of India on December 30, 1999. President of India on December 30, 1999.
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Geographical Indications of Goods Geographical Indications of Goods
(Registration & Protection) Bill, 1999 approved (Registration & Protection) Bill, 1999 approved
by both houses of the Indian Parliament on by both houses of the Indian Parliament on
December 23, 1999. December 23, 1999.
The Industrial Designs Bill, 1999 which replaces The Industrial Designs Bill, 1999 which replaces
the Designs Act, 1911 on December 23, 1999 the Designs Act, 1911 on December 23, 1999
and is presently before the Lower House for its and is presently before the Lower House for its
consideration. consideration.
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The Patents (Second Amendment) Bill, 1999 to The Patents (Second Amendment) Bill, 1999 to
further amend the Patents Act, 1970 and make it further amend the Patents Act, 1970 and make it
TRIPS compliant was introduced in the Upper TRIPS compliant was introduced in the Upper
House of Indian Parliament on December 20, House of Indian Parliament on December 20,
1999. 1999.
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Projects relating to the modernization of patent Projects relating to the modernization of patent
information services and trademarks registry information services and trademarks registry
have been implemented with help from have been implemented with help from
WIPO/ UNDP. WIPO/ UNDP.
The Patents Law provides for compulsory The Patents Law provides for compulsory
license to avoid misuse of an Exclusive license to avoid misuse of an Exclusive
Marketing Right by the right holder. Marketing Right by the right holder.
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In terms of the TRIPS Agreement, India has In terms of the TRIPS Agreement, India has
time till January 1, 2005 to extend patent time till January 1, 2005 to extend patent
protection to this area. protection to this area.
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Intellectual Property Appellate Board Intellectual Property Appellate Board
(IPAB) (IPAB)
An An Intellectual Property Appellate Board Intellectual Property Appellate Board
(IPAB) has been set up at (IPAB) has been set up at Chennai Chennai to hear to hear
appeals against the decisions of Registrar of appeals against the decisions of Registrar of
Trademarks, Geographical Indications and the Trademarks, Geographical Indications and the
Controller of Patents. Controller of Patents.
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Both foreign and domestic IPR holders are Both foreign and domestic IPR holders are
treated equally under Indian law. treated equally under Indian law.
The Government also brought out A Handbook The Government also brought out A Handbook
of Copyright Law to create awareness about of Copyright Law to create awareness about
copyright amongst the stakeholders, copyright amongst the stakeholders,
enforcement agencies, professional users like the enforcement agencies, professional users like the
scientific and academic communities and scientific and academic communities and
members of the public. members of the public.
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At present there are three registered copyright societies. At present there are three registered copyright societies.
These are These are --
1. The Society for Copyright Regulations of 1. The Society for Copyright Regulations of
Indian Producers of Films & Television Indian Producers of Films & Television
(SCRIPT) for cinematography films, (SCRIPT) for cinematography films,
2. Indian Performing Rights Society Limited 2. Indian Performing Rights Society Limited
(IPRS) for musical works and (IPRS) for musical works and
3. Phonographic Performance Limited (PPL) for sound 3. Phonographic Performance Limited (PPL) for sound
recordings. recordings.
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These societies, particularly the PPL and the These societies, particularly the PPL and the
IPRS, have been quite active in anti IPRS, have been quite active in anti--piracy work. piracy work.
The PPL has even set up a special anti The PPL has even set up a special anti--piracy piracy
cell under a retired Director General of Police, cell under a retired Director General of Police,
and this cell has been working in tandem with and this cell has been working in tandem with
the police. the police.
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WIPO Guide to Intellectual Property WIPO Guide to Intellectual Property
Worldwide Worldwide
This Guide is the first of its kind published by World Intellectual This Guide is the first of its kind published by World Intellectual
Property Organization (WIPO) . Property Organization (WIPO) .
It gives essential information on intellectual property by means of It gives essential information on intellectual property by means of
individual country profiles on WIPO Member States. individual country profiles on WIPO Member States.
The profiles include Basic legislation, membership of The profiles include Basic legislation, membership of
international treaties, administrative structures, governmental and international treaties, administrative structures, governmental and
non non--governmental bodies for information and enforcement, governmental bodies for information and enforcement,
educational institutions and industrial property statistics; useful educational institutions and industrial property statistics; useful
contact addresses are provided for readers needing further contact addresses are provided for readers needing further
information. information.
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It is intended as a tool for all kinds of readers, It is intended as a tool for all kinds of readers,
not only for officials working in this field, but not only for officials working in this field, but
for legal practitioners, teachers, students, for legal practitioners, teachers, students,
researchers, creators or owners of intellectual researchers, creators or owners of intellectual
property, as well as for interested members of property, as well as for interested members of
the general public. the general public.
Certain Internet links to some country offices Certain Internet links to some country offices
are provided for information purposes only. are provided for information purposes only.
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The World Intellectual Property Organization The World Intellectual Property Organization
(WIPO) is an international intergovernmental (WIPO) is an international intergovernmental
organization dedicated to ensuring that the organization dedicated to ensuring that the
rights of creators and owners of intellectual rights of creators and owners of intellectual
property are protected worldwide and that property are protected worldwide and that
inventors and authors are thus recognized and inventors and authors are thus recognized and
rewarded for their ingenuity. rewarded for their ingenuity.
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This international protection acts as a spur to This international protection acts as a spur to
human creativity, pushing forward the human creativity, pushing forward the
boundaries of science and technology and boundaries of science and technology and
enriching the world of literature and the arts. By enriching the world of literature and the arts. By
providing a stable environment for the providing a stable environment for the
marketing of intellectual property products, such marketing of intellectual property products, such
protection also facilitates international trade. protection also facilitates international trade.
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The information in this Guide is drawn from data The information in this Guide is drawn from data
supplied by the governmental administrations of the supplied by the governmental administrations of the
countries concerned, as well as, in some cases, from countries concerned, as well as, in some cases, from
WIPO sources, supplemented in parts by information WIPO sources, supplemented in parts by information
from the World Trade Organization (WTO). from the World Trade Organization (WTO).
The titles of the laws and of the government The titles of the laws and of the government
administrations responsible for intellectual property in administrations responsible for intellectual property in
English, French and Spanish speaking countries are English, French and Spanish speaking countries are
given, whenever available, in their original language. given, whenever available, in their original language.
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Research and private study Research and private study Fair dealing with a Fair dealing with a
literary, dramatic, musical or artistic work for the literary, dramatic, musical or artistic work for the
purposes of research for a non purposes of research for a non--commercial purpose commercial purpose
does not infringe any copyright in the work provided does not infringe any copyright in the work provided
that it is accompanied by a sufficient acknowledgement. that it is accompanied by a sufficient acknowledgement.
. Copying for purpose of research or private study . Copying for purpose of research or private study
. Copying for purpose of criticism or review. . Copying for purpose of criticism or review.
. Copying for non . Copying for non--profit educational purposes profit educational purposes
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THE DIGITAL MILLENNIUM THE DIGITAL MILLENNIUM
COPYRIGHT ACT OF 1998 COPYRIGHT ACT OF 1998
Nonprofit library, archive and educational Nonprofit library, archive and educational
institution exception (section 1201(d)). institution exception (section 1201(d)).
A good faith determination as to whether they A good faith determination as to whether they
wish to obtain authorized access to the work. wish to obtain authorized access to the work.
Section 404 of the DMCA amends the exemption Section 404 of the DMCA amends the exemption
for nonprofit libraries and archives in section 108 for nonprofit libraries and archives in section 108
of the Copyright Act to accommodate digital of the Copyright Act to accommodate digital
technologies and evolving preservation practices. technologies and evolving preservation practices.
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..
Prior to enactment of the DMCA, section 108 Prior to enactment of the DMCA, section 108
permitted such libraries and archives to make a permitted such libraries and archives to make a
single facsimile (i.e., not digital) copy of a work for single facsimile (i.e., not digital) copy of a work for
purposes of preservation or interlibrary loan. purposes of preservation or interlibrary loan.
amended, section 108 permits up to 3 digital copies of amended, section 108 permits up to 3 digital copies of
unpublished and damaged works for preservation of unpublished and damaged works for preservation of
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Copyrighted material provided that digital copies Copyrighted material provided that digital copies
are not made available to the public outside the are not made available to the public outside the
library premises or put on the Internet. library premises or put on the Internet.
Also permits a library to copy a work into a new Also permits a library to copy a work into a new
format if the original format becomes format if the original format becomes
obsolete obsoletethat is, the machine or device used to that is, the machine or device used to
render the work perceptible is no longer render the work perceptible is no longer
manufactured or is no longer reasonably manufactured or is no longer reasonably
available in the commercial marketplace. available in the commercial marketplace.
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These copies to be used by L library users within the These copies to be used by L library users within the
library and . inter library and . inter--library loan purposes library loan purposes
Legal issues Legal issues. Libraries, particularly at universities without . Libraries, particularly at universities without
law schools, are often the source of legal information law schools, are often the source of legal information
about copyright law, mainly about copyright law, mainly U.S. CodeTitle17 U.S. CodeTitle17 especially especially
sections 107 sections 107--108). 108).
In addition to providing guidance to students and In addition to providing guidance to students and
faculty about using copyrighted works appropriately faculty about using copyrighted works appropriately
and about their rights as and about their rights as
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The most notable changes affect the The most notable changes affect the
definition of fair dealing and libraries ability to definition of fair dealing and libraries ability to
make copies for entities conducting commercial make copies for entities conducting commercial
research. research.
Such research is no longer covered as an Such research is no longer covered as an
exemption from copyright law. exemption from copyright law.
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Digital Copying Technology Digital Copying Technology
. File sharing on Internet is easy . File sharing on Internet is easy
. A single digital copy can be used for worldwide . A single digital copy can be used for worldwide
distribution in spite of copyright laws distribution in spite of copyright laws
. Any one with access to Internet and scanner . Any one with access to Internet and scanner
can now copy a work and make it available to millions can now copy a work and make it available to millions
of users for download and print. of users for download and print.
. Publishers are increasing using the Internet . Publishers are increasing using the Internet
as a global way to offer their publications to as a global way to offer their publications to
the users community. the users community.
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Publishers usually will agree to an authors Publishers usually will agree to an authors
request to retain rights to post content to a request to retain rights to post content to a
website or institutional repository. website or institutional repository.
Faculty should be encouraged to retain these Faculty should be encouraged to retain these
rights before and after publishing their work so rights before and after publishing their work so
they can contribute their content to online they can contribute their content to online
repositories repositories
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. A license is an agreement between the . A license is an agreement between the
publisher and the user wherein the publisher publisher and the user wherein the publisher
transfers the non transfers the non--exclusive and non transferable exclusive and non transferable
right to use materials to the user or licensee. right to use materials to the user or licensee.
. License agreements are used by the publishers . License agreements are used by the publishers
as legal method for controlling the use of their e as legal method for controlling the use of their e
resources. resources.
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The licenses for electronic resources impose two The licenses for electronic resources impose two
types of restrictions on its usage, namely types of restrictions on its usage, namely
i) who can use these resources; and i) who can use these resources; and
ii) how the resources can be used. ii) how the resources can be used.
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EE--resource Licensing resource Licensing
. Systematic or programmatic downloading, . Systematic or programmatic downloading,
retention, and printing are prohibited. For retention, and printing are prohibited. For
example, you cannot download entire issue of a example, you cannot download entire issue of a
journal or print out several copies of the same journal or print out several copies of the same
article. article.
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Electronic distribution of content is generally Electronic distribution of content is generally
restricted. restricted.
Multiple copies of digital documents and their Multiple copies of digital documents and their
circulation is prohibited. circulation is prohibited.
Copyright laws protect published material in Copyright laws protect published material in
any format so that it cannot be copied except in any format so that it cannot be copied except in
accordance with fair use. accordance with fair use.
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Viewing, downloading, copying, printing and Viewing, downloading, copying, printing and
saving a copy of search results saving a copy of search results
Viewing, downloading, copying, printing and Viewing, downloading, copying, printing and
saving individual articles saving individual articles
Using e Using e--resources for scholarly, educational or resources for scholarly, educational or
scientific research, teaching, private study and scientific research, teaching, private study and
clinical purposes clinical purposes
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Sending a copy of an article to another authorized user Sending a copy of an article to another authorized user
(i.e. current faculty, students or staff) (i.e. current faculty, students or staff)
Posting the URL to the publisher's version of the article Posting the URL to the publisher's version of the article
on a class website (publisher links will allow) on a class website (publisher links will allow)
Use of robots or intelligent agents to do systematic, Use of robots or intelligent agents to do systematic,
bulk or automatic downloading is not permitted bulk or automatic downloading is not permitted
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Use of robots or intelligent agents to do Use of robots or intelligent agents to do
systematic, bulk or automatic downloading is systematic, bulk or automatic downloading is
not permitted not permitted
Systematic downloading or printing of entire Systematic downloading or printing of entire
journal issues or large portions of other e journal issues or large portions of other e--
resources is not permitted resources is not permitted
Using e Using e--resources for commercial gain is not resources for commercial gain is not
permitted (i.e. reselling, redistributing or permitted (i.e. reselling, redistributing or
republishing.) republishing.)
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Transmitting, disseminating or otherwise Transmitting, disseminating or otherwise
making online content available to unauthorized making online content available to unauthorized
users (i.e. sending to mailing lists or electronic users (i.e. sending to mailing lists or electronic
bulletin boards) is not permitted. bulletin boards) is not permitted.
Posting the publisher's version or PDF of an Posting the publisher's version or PDF of an
article to an open class website is article to an open class website is
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Copy Protection Solutions Copy Protection Solutions
Water Water--marking marking
. Watermarking embeds a digital signal in text, . Watermarking embeds a digital signal in text,
image, audio or video files, which may contain image, audio or video files, which may contain
information and proof of rights to a product's information and proof of rights to a product's
owner or publisher. owner or publisher.
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Challenges to Copyrightable Work in Challenges to Copyrightable Work in
Digital Environment in India Digital Environment in India
In India the laws to consider In India the laws to consider-- about the use about the use
of Electronic Data Interchange (EDI), of Electronic Data Interchange (EDI),
ecommerce, copyright, IPR etc. ecommerce, copyright, IPR etc.
. Although provisions in IT Act, 2000 . Although provisions in IT Act, 2000-- still need still need
to change the Evidence Act to recognise to change the Evidence Act to recognise
digital signatures digital signatures
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. Changes required in Indian Penal Code , . Changes required in Indian Penal Code ,
1860, Evidence Act, 1872, Indian Patents 1860, Evidence Act, 1872, Indian Patents
Act Act-- to recognise emerging technologies to recognise emerging technologies
towards towards
. Section 62 of the Indian Copyright Act, 1957 . Section 62 of the Indian Copyright Act, 1957
provides for jurisdiction to any court having provides for jurisdiction to any court having
a direct jurisdiction over the matter a direct jurisdiction over the matter
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Digital Signature Digital Signature
. Digital signature is an electronic rather than a . Digital signature is an electronic rather than a
written signature that can be used to written signature that can be used to
authenticate the identity of the sender of a authenticate the identity of the sender of a
message or a document. message or a document.
. It can also be used to ensure that the original . It can also be used to ensure that the original
content of the message or document has not content of the message or document has not
been changed. been changed.
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The IT Act provides for extra The IT Act provides for extra--territorial territorial
jurisdiction to cyber crime cases. jurisdiction to cyber crime cases.
Section 74 provides Section 74 providesthat where any offence that where any offence
involves a computer or computer resource in involves a computer or computer resource in
India , it can be taken note of under Indian India , it can be taken note of under Indian
laws. laws.
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