Edited by Sahid, Team Member, LawDiktat.
Jurisdiction refers to the power of the court to render binding decisions. It may be territorial, pecuniary or subject matter related.[i] In India, territorial jurisdiction is still widely debated in the context of trademark or copyright infringement. The advent of the internet has given rise to new forms of intellectual property infringement like cyber piracy, domain name infringement including cybersquatting, unauthorized sale of e-books etc. Here, the traditional choice of law may seem inept if the conflict is extraterritorial.
The Civil Procedure Code, 1908 codifies the fundamental rules governing procedure, jurisdiction and authority of civil courts. Section 20 of the Code is a residuary provision to Sections 16-19 that deal with forum options.[ii] It provides two grounds to exercise territorial jurisdiction – (i) if the defendant resides/carries on business/personally works for gain in the territory (ii) if the cause of action arose there.
Sections 134(2) of the Trademarks Act, 1999 and 62(2) of the Indian Copyright Act, 1957 provide an additional third ground, which is the area of residence/business of the plaintiff. The legislative purpose of these provisions was to allow the plaintiff to file suit at a forum of convenience. In furtherance of this, and with the rise in e-commerce, the judiciary has liberally interpreted provisions concerning jurisdictional requirements.[iii]
However, at times, plaintiffs misused the said sections to pull defendants to distant forums. In the case of Sanjay Dhalia[iv], the judicial decision aimed to curtail such mischief and scaled-down liberal interpretation. The court held that if there is a common jurisdiction as per Sections 134(2) and cause of action, the suit must be filed there. The situation has been clarified with an illustration- “… plaintiff is carrying on business at Mumbai and cause of action has arisen there. Plaintiff is having branch offices at Kanyakumari and Port Blair. If interpretation suggested by appellants is acceptable, mischief may be caused by the such plaintiff to drag a defendant to Port Blair or Kanyakumari.”[v]
In Ultra Home Construction Pvt. Ltd. v. Purushottam Kumar Chaubey[vi], the court contemplated solutions for four possible situations. First, when the plaintiff has only one office and the cause of action arose at a different place, the plaintiff can file at the place of office. Second, the plaintiff has one principal office and branches elsewhere. If the cause of action arose at the place of principal office, the plaintiff can sue at the place of principal office only. The third scenario is similar to the second, but the cause of action arose at the location of its branch. Here, the plaintiff can sue only at the place of its branch. Lastly, the cause of action arose at neither place of principal or branch offices. The plaintiff can file suit at the place of the principal office, not a place of a branch.
In today’s era of commercial transactions via the internet, there are situations where infringements (cause of action) happen on websites, and suits are filed in forums where neither parties have a physical presence.
In Banyan Tree Holding Pvt. Ltd. v. A Murali Krishna Reddy, it was held that the mere availability of a “passive” defendant’s website in the forum state without specifically targeting the consumers of such state does not grant jurisdiction. The plaintiff has to prove that the availability of the defendant’s website had a negative impact on his goodwill/reputation and that the transactions are real and not “trap” transactions.[vii]
In V Guard Industries Ltd v. Sukan Raj Jain & Anr., the court held that it had jurisdiction for the following reasons – (i) the defendant carried business in the place of forum using an e-commerce platform (ii) plaintiff had purchased defendant’s products at such place (iii) plaintiff can file suit in place of the branch office, as decided in the Ultra Home case. It was also noted that a “self-generated” sale cannot be construed as a trap sale.[viii]
In Bulgari Spa v. Notandas Gems Private Limited,[ix] the court has clearly distinguished between a mere interactive website and a commercially active one. The former only provides information whereas the latter permits purchase for consideration. For the former, jurisdiction exists only when it is proved that information has been accessed within the forum’s territory. For the latter, jurisdiction exists if transactions can be completed within territorial limits.
Indian courts favour a middle course approach between the ‘effects’ and ‘availment’ tests. The effects test establishes jurisdiction if the effects of the defendant’s acts are aimed at the forum state.[x] Purposeful availment is the situation where the defendant has taken deliberate efforts to avail the jurisdiction of the forum state.[xi] The theories such as ‘minimum contact’ and ‘target-based’ tests are more widely applied by forums in countries having strong intellectual property protection. Minimum contacts theory refers to the nonresident defendant’s associations with the forum state to determine the forum state’s jurisdiction.[xii] Target-based test (applied in the Banyan tree case) relies on whether the defendant had the intention to have commercial relations with consumers in that jurisdiction.[xiii]
In Tata Sons Ltd. V. Manu Kosari,[xiv] it was observed that with the emergence of cyberspace, domain names or internet sites qualify for protection as a trademark.[xv] The Zippo test is used for jurisdiction issues related to Internet domain names, where the defendant’s activities are treated as active/passive/interactive.[xvi]
At times, multiple jurisdictions may be involved as registration may be under one server, but there is an overlap of trademarks of entities of varied geographical locations. For this purpose, the ICANN ‘Uniform Domain Name Dispute Resolution Policy and Rules’[xvii] exists with an approved list of ‘Dispute Resolution Service Providers’[xviii]. In Arun Jaitley v. Network Solutions Private Ltd.[xix], the defendant was permanently restricted from using, advertising or promoting the domain name and was directed to handover the domain name to the plaintiff. The governing body under the ICANN was also required to block the domain name and transfer it to the plaintiff.[xx]
When digital copies are transmitted through the internet, there is a likelihood of copyright infringement across multiple countries. WIPO is the global forum for intellectual property services, policy, information and cooperation.[xxi] It conducted the ‘Hague Conference on Private International Law’ wherein signatory states consent to enforce decisions of the forums of co-signatories provided the forum was chosen by an agreement signed by the parties. Yet, litigation may be inflexible in contrast to Alternate Dispute Resolution mechanisms like arbitration which give parties the freedom to customize their disputes and offers jurisdictional neutrality.[xxii] WIPO has a specialized Arbitration and Mediation Center.
Our judiciary is actively evolving norms to deal with uncertainties in relation to the discussed issues. It is vital to view the matter from an international perspective for internet-related disputes. It may be beneficial for our judicial system to refer to the approaches applied by countries that firmly protect their intellectual property right holders. An effective judicial system is founded on regulations that clearly define principles of law and jurisdictional authority.
[i] Territorial Jurisdiction of Courts in India, (2013), https://www.lawsenate.com/publications/articles/territorial-jurisdiction-of-courts-india.pdf.
[ii] Isaac, Jithin Saji. “Redefining the jurisdiction clause under copyright and trade mark laws in India.” Journal of Intellectual Property Law & Practice 10.1 (2015).
[iii] G Chakrabarty, S Dama, “Remedying mischief in deciding jurisdiction favouring the plaintiff in India” in Annotated Leading Trademark Cases in Major Asian Jurisdictions(1st edn, 2019).
[iv] Indian Performing Rights Society v. Sanjay Dalia & Anr on 1 July, 2015, https://indiankanoon.org/doc/51545606/
[v] id. ¶ 24.
[vi] Ultra Home Construction Pvt. Ltd v. Purushottam Kumar Chaubey, FAO (OS) 494/2015 & CM 17816/2015, https://indiankanoon.org/doc/123737198/ (last visited Nov 27, 2022).
[vii] Paridhi Jain, Territorial Jurisdiction in Intellectual Property Disputes, Manupatra, https://articles.manupatra.com/article-details/Territorial-Jurisdiction-in-Intellectual-Property-Disputes (last visited Nov 27, 2022).
[viii] V Guard Industries Ltd V. Sukan Raj Jain &Anr, CS(COMM) 25/2021, decision dated July 5, 2021, Nishith Desai Assoc., https://www.nishithdesai.com/SectionCategory/33/IP-Hotline/12/66/IPHotline/4761/1.html (last visited Nov 27, 2022).
[ix] Bulgari Spa v. Notandas Gems Private Limited, I.A. 16751/2021, https://indiankanoon.org/doc/84705826/ (last visited Nov 27, 2022).
[x] S.S. Rana & Co. Advocates, Internet And The Determination Of Jurisdiction In The Case Of Trade Mark Infringement – Trademark – India, https://www.mondaq.com/india/trademark/708968/internet-and-the-determination-of-jurisdiction-in-the-case-of-trade-mark-infringement (last visited Nov 27, 2022).
[xi] Purposeful availment, https://itlaw.fandom.com/wiki/Purposeful_availment (last visited Nov 27, 2022).
[xii] Minimum Contacts, LII / Legal Information Institute, https://www.law.cornell.edu/wex/minimum_contacts (last visited Nov 27, 2022).
[xiii] Kyra, Report: How ‘Targeting’ Establishes Jurisdiction in Trademark Usage on the Internet, International Trademark Association (2022), https://www.inta.org/report-how-targeting-establishes-jurisdiction-in-trademark-usage-on-the-internet/ (last visited Nov 27, 2022).
[xiv] 2001 PTC 432, (Del.)
[xv] K Thakur, S Sirkeck. “Dispute of Domain Name with Trademark: Jurisdictional Issue and Future Challenges.” 4 Indian J.L. & Just. 35 (2013)
[xvi] The Curious Case of ZIPPO Test – CyberPeace Corps, https://www.cyberpeacecorps.in/the-curious-case-of-zippo-test/ (last visited Nov 27, 2022).
[xvii] Overview of ICANN Uniform Domain Name Dispute Resolution Policy and Rules, https://www.wipo.int/amc/en/domains/registrar/overview.html (last visited Nov 27, 2022).
[xviii] The Uniform Domain Name Dispute Resolution Policy, as approved by the Internet Corporation for Assigned Names and Numbers on October 24, 1999; https://www.icann.org/resources/pages/providers-6d-2012-02-25-en
[xix] CS (OS) 1745/2009
[xx] S.Taslim, “Multi-territorial Intellectual Property Disputes over Cyber Space” SSRN 3328002, 2017.
[xxi] Inside WIPO, https://www.wipo.int/about-wipo/en/index.html (last visited Nov 27, 2022).
[xxii] S.Taslim, “Multi-territorial Intellectual Property Disputes over Cyber Space” SSRN 3328002, 2017.
Authored by Anupa A M, Legal Intern, LawDiktat.
Edited by Sahid, Team Member, LawDiktat.
Let us suppose you have an idea for writing a book, so you pen down a rough draft and try to get it published. The publisher, who wants to save the money they would need to pay you, takes your idea and makes another book on the same lines and publishes it as their product. Now, the question arises, since you didn’t have any tangible belonging stolen from you and only the idea of your book got stolen, how do you get remunerations for the damages done to you?
The answer to this question lies in Intellectual Property Rights (IPR). IPR are a set of regulated rules and laws that intend to protect the intangible products of human ingenuity like distinct sounds, words, phrases, designs, inventions, etc. The outcome of the ‘mental labour’ of individuals finds protection under IP laws. Thus, due to the protection granted by IP laws, there comes a boost in development and research because the creators know that they get exclusive rights to production and the profits stemming from its sales.
Technology Transfer refers to a smooth flow of ideas, inventions, and discoveries to different entities who could further use them to make something new. The creators, protected under Intellectual Property Rights, grant both private and public users access to their IP for further development and research, which leads to new products and ideas.
Example: You manage to make a drug that cures Haemophilia (disorder stopping proper blood clotting). Now, technology transfer works in the way that you give access to the said drug to another researcher working on hemorrhages (blood loss) to ensure that their research gets a boost due to your cure. So, Technology Transfer creates a web of collaboration where one finds assistance from different individuals and entities in a similar field, and the primary goal becomes speedy research and development.
Technology Transfer has the following benefits:
More often than not, Research and Development is a cyclic process wherein the profits booked from the sale and commercialization of the previous research provide for the funding of its successor. Usually, universities and other entities invest in the research and development of numerous ideas, which enables major multinational companies to purchase these developments and save costs on internal Research and Development and roll the ball further by developing their unique technologies. The revenue gathered from such sales helps in funding the research and development and perfecting the older ones. Thus, Technology Transfer does facilitate the production of an ecosystem of its own.
Cost Efficiency is another advantage of Technology Transfer that we usually find overlooked. To understand this idea, let us look at an example. Suppose you wish to go from point A to Z, but since the distance is too great, you would be bound to make some pitstops for resting and gathering your energy. On these pitstops, you would get refreshments and replenish your vehicle’s fuel. Now, let us place this metaphor in the tech world.
One simply doesn’t make penicillin from the raw materials; prior to penicillin, someone had to make the components used in the drug, like a constant source of electricity, sulphuric acid, etc. These numerous components are the pitstops from our metaphor. So, the costs related to the research and development required for the production of sulfuric acid become needless for the research and development of penicillin. Thus, we find that we can skip the numerous pitstops altogether, and the length of the journey goes from A to Z to merely Y to Z since the previous steps were already completed by someone else.
The primary disadvantage of Technology Transfer comes from the human nature of being overly reliant on the product, i.e., since the machine/technology in question comes into existence through the collaborative efforts of numerous individuals and entities, its sustenance and maintenance would also require a collaborative effort. Failing to collaborate in the sustenance and maintenance of the technology, we would find that there would be a total breakdown of the ecosystem since an expert of the technology’s preceding invention wouldn’t know about the new technology and vice-versa.
Technology Transfer, prima facie, comes off as an extremely useful and efficient method of promoting research and development. However, one also ignores the outright problem that it would accompany itself, i.e., unemployment. Let us think from a different perspective: as of now, numerous individuals are working in the production of newer technology, and others working in the mass production of the present technology. So, what would happen if the progression of technological advancements increased exponentially? There are two possibilities that follow closely, namely:
Thus, letting technology and automation progress rapidly without assigning a substitute for the employment prospects of the individuals related to the field would, in all possibilities, lead to mass layoffs and firings.
Technology Transfer cannot get limited to a single step like granting access to one technology to another inventor. It consists of several stages through which one can ensure that efficient technology transfer and the protection of Intellectual Property go hand in hand. The six steps associated with the implementation of efficient technology transfer are:
Thus, to conclude, the concept of International Technology Transfer enables that the world of division and borders doesn’t end up limiting the pursuit of human developments and advancements and also ensures that the process of development for the underdeveloped areas attains a similar stature as their developed counterparts. The only aspect of International Technology Transfer that one needs to take into consideration is that the technology getting transferred is also suitable and cost-efficient for the receiver. For example, if an invention developed in India, and needs large amounts of human labour, gets transferred to the US, we would find the application of the said technology inapplicable since the labour costs in the US far exceed that of their Indian counterparts. This change in geographic location would make the usage of the tech moot due to the high costs that come with it. And on the other hand, any piece of technology that consumes enormous amounts of market shares and requires little to no manual labour would not be a suitable choice for India since it would further lead to an employment crunch.
IP or intellectual property is indeed an intangible property that can provide the world with both a life-changing invention and also help the creator or his firm develop financially. Do you know a patent is a legal privilege granted by a country’s government to an inventor? It offers you the legal authority to prevent others from copying your invention. Patent protection is granted for 20 years. The basic goal is to protect the ideas and inventions that are made and, as a result, promote more innovation.
A patent is just a privilege or right awarded by the government to a person or firm that prevents others from creating, utilizing, selling, and importing the patented invention or procedure without permission. The first thing an inventor does to prevent his or her invention from being abused is to file a patent or register a patent. Patent filing is indeed a hard process, but it can be simplified with the correct legal counsel. The cost of getting a patent registered in India is increasing significantly, increasing the necessity for new and revised laws. The Patent Act of 1970 governs patents, and the government also gave the Patent (Amendment) Rule of 2021. The government wants to encourage society’s innovation and the development of new technology.
Patent registration can be done simply at the Indian Patent Office, via a national phase PCT application, or via a normal application. The patent registration office will charge an additional 10% fee for internet applications. Here is a step-by-step list of what you need to do to get a patent for your idea, invention, or other intellectual property (IP).
One must first determine whether your idea is patentable before beginning the patent filing process. This implies you should look to see if someone else has received a patent for the same invention/idea or not the one you’re working on. In-depth patentability research can help one determine whether they have a likelihood of obtaining a patent. Subject matter that is not patentable is defined under Section 3 of the Patents Act. As a result, the inventor should be certain that the invention doesn’t somehow fall into any of the non-patentable categories while conceiving it.
The innovator must conduct a patentability search after gaining clarity on the innovation. This is significant since it will aid in determining whether or not the invention is unique. The Patents Act requires that all inventions meet the novelty requirements. After completing a thorough search and compiling a patentability report, the patentability opinions can be considered. The patentability search discovers the closest potential prior art (publicly available) relevant to the invention, and based on the findings, an opinion on the patentable subject matter of that invention can be given, which could be good, bad, or impartial. The efficient drafting of patent application filing is the next step. Claims, Background, Description, Drawings (if there are any), Abstract, and Summary are all elements of the application. To achieve successful disclosure of the invention, all of these components must be carefully prepared. When crafting the application, it is recommended that extreme caution and precision be used.
This is when the real work begins. Following the writing of the patent application, it can be filed only with the government patent office using Form 1 as the application form. The patent filing number would be printed on the receipt. If the innovation is still in its early stages, a provisional patent application might be filed under Form 2. The advantage of registering a provisional application is that it allows you to secure a previous filing date, which is important in the patent industry. In addition, one has 12 months to submit the entire specification. For start-ups and small businesses, the Form 28 application form must be utilized to apply for patents.
The application generally gets published within 18 months from the date of patent filing if the complete specification is filed. There are no particular requirements for publication from the applicant. If the applicant doesn’t wish to wait until the 18-month period has passed, he or she can file Form 9 with the required fees and request early publication. In most cases, the patent application is usually published one month after the request for early publication is made.
Unlike publication, the examination isn’t just an automated procedure; the applicant must request that the patent application be examined by the patent office. Under Form 18, the usual request should be issued within 48 months after the date of the application’s filing. Upon receiving such a request, the controller assigns the application to the patent examiner, who reviews it using several patentability criteria, such as novelty, non-obviousness, inventive step, and industrial applicability, and issues the First Examination Report to the applicant (FER). The examiner goes over each of his objections in great detail. This could add another 6 to 9 months to the application process. In the case of patents, examiner objections are extremely common. If the inventor has to make revisions to his or her objection, he or she can submit Form 4 to obtain a time extension.
The applicant must respond to the patent office’s objection in the form of a First Examination Report. The applicant is required to respond to the objection expressed within the examination report in writing. The applicant might show that the invention is patentable and try to disprove the entire objection. If necessary, a physical court hearing or video conferencing might be ordered.
Following the resolution of all objections raised, the application will be submitted for a grant once it has been determined to meet all patentability conditions, and the applicant will be given the patent. The patent grant is announced in the patent journal, which is published regularly. Any interested individual can file a post-grant opposition by submitting a notice of opposition to the controller within 12 months of the date of issuance of the patent award.
NOTE! – Getting the Patent Renewed: The patent holder must additionally pay an annual renewal fee to keep his patent active. In India, you can extend the life of the patent for a maximum of 20 years from the day it was first filed.
In the last few years, the procedure of registering a patent has advanced significantly. The Patent (Amendment) Regulations, 2021, would also encourage academic institutions to file new patents to encourage the development and commercialization of new, creative technologies.
The internet introduced a new realm to people; it offered endless possibilities to achieve numerous goals. Ordering groceries, accessories, and even jewellery has become possible with just a touch. And so, life shifted from the physical world to the digital world, and much like in the physical world, crime found its new target, the digital one. Hacking, data theft, cybersquatting, online phishing, and stalking have become rampant. To tackle this, governments introduced laws, and people became more cautious about their data, digital footprint, and privacy. The internet, a public domain, can be accessed by anyone. So, much like the real-world data, resources and digital assets weren’t safe. Thus, the Virtual Private Network (VPN) found a strong foothold in the market.
Every device connected to the internet has its own unique 32-bit code known as the IP address that shows the location where the said device got connected to the internet. The data getting transferred gets enclosed between the IP addresses of the source and receiver along with other additional packets to direct it to its destination. Here, the data packet enters the public domain (internet) and becomes susceptible to malicious attacks by hackers and other entities. The data getting transferred can be read with ease, which leads to data theft and identifying the exact location of the sender and receiver.
A VPN protects the data when it floats through the public domain. A VPN encrypts data per se and transfers it through the web. Even if someone can access the data, they won’t be able to make any sense of it since it is encrypted by the VPN using a specific key. On receiving the data, the key of the VPN can decrypt the data it receives and make it available in its original form to the receiver.
Now comes the question of what truly is the problem with VPNs when they’re merely being used to protect the data and identities of various internet users from malicious individuals and entities? Let us take a look at the proposal offered by the government first and understand the perspective behind the banning of VPNs. The Parliamentary Standing Committee on Home Affairs, on March 15th, 2021, presented its 233rd report on Atrocities and Crimes against Women and Children in Parliament and proposed a blanket ban on VPNs, deeming them a threat to national security. As mentioned earlier, a VPN masks the sender’s location and encrypts the data getting transferred. The Parliamentary Committee’s proposal stated that since the location of criminals is hidden, they can access platforms like the Dark Web and commit crimes against the state and other individuals. Criminals can get away with their crimes on the internet because they can hide their identities.
The deep and dark web is an extensive part of the internet and can find elaborate explanations. But to put it simply, the deep web is the part of the internet that is not indexed by our everyday web search engines, i.e., the search engines don’t deem the domains important enough to hold a spot. Thus, non-indexed parts of the internet are known as the “Deep Web.” The remainder of the internet is known as the ‘Surface Web’, which one can access through regular search engines.
Further down still, we come across the dark web, which sounds more devious than it is in reality. The dark web is that part of the deep web that is further protected by passwords and specific configurations and can only be accessed through particular systems and software. People are suspicious of this part of the internet because it is hard to get to and hard to track down.
The cases related to the dark web are few, but the media coverage they receive is such that it gets deemed as a dark and illegal place where all the shady deals get executed. This perception was highlighted in 2013 when the infamous ‘Silk Road’ marketplace came to light and was shut down by the FBI. The Silk Road was an illegal online marketplace that facilitated unlawful sales of drugs, weapons, and child pornography. The marketplace used Bitcoin for all its financial transactions (also an untraceable financial exchange). These anonymous financial transactions and internet presence kept the marketplace hidden from law enforcement for nearly two years.
Implementation of any ban or restriction is done based on the information collected from society and the kind of effect the ban has on society. The use of VPNs is on the rise, with a 671% increase in VPN users in India in the first half of 2021 alone. This increase could show a response to the ban of multiple apps in India, but a look at the larger picture indicates that the 4.9 billion cyberattacks in 2020 alone initiated the rising concerns about privacy. Private information is the essence of any individual since it defines who they are, what they do, and with whom they interact. Compromising personal information means leaving the individual susceptible to cyberattacks and breaches of privacy. Also, over 39% of the users of VPNs are aged between 16 and 22. This statistic itself is an indication that data and privacy protection are a rising concern of the next generation. As per the Pew Internet Project of 2007, 85% of adults believed that controlling access to their personal information is extremely important.
A VPN isn’t just used to hide a person’s location and access content; it’s also used to protect them from bad actors who want to steal their information, protest against dictatorial governments, avoid cyberstalking, and act as “whistleblowers” against illegal actions by organizations and people.
The direction, issued by the Ministry of Electronics and Information Technology and the Indian Computer Emergency Response Team (CERT-In) on April 28, asks the VPN service providers to maintain usage logs for five years, thereby destroying the idea of a VPN, i.e., opaque access to the internet for the user.
The points of contention when it comes to curtailing VPN access and restricting or regulating the flow of data are usually the ones fighting between the right to privacy and against undue surveillance and state security, along with the elimination of public threats.
Personal data of an individual is the most sought-after asset in the digital world, and governments and other entities pursue it rightly so. At large, governments have been at the center of major snooping scandals on their own citizens. So, one can conveniently argue that the ban on VPNs seems like another ploy to get access to private information under the guise of national security.
From the Indian perspective, one finds that the privacy of individuals is a fundamental right guaranteed to the citizens under Article 21 of the Constitution of India, which got a broader scope and understanding from the 2017 judgment of the Retd. J. K. Puttaswamy v. Union of India, Writ Petition (Civil) No. 494 of 2012, (2017) 10 SCC 1. Like all other fundamental rights, this right can be curtailed under due process of law, keeping in mind the bigger picture that unmonitored internet access would only facilitate the promulgation of threats to public security.
The Silk Road case opened the world to the world of the unmonitored dark web, where one can exercise absolute freedom, i.e., usually something illegal. But then we must remember that the average internet user doesn’t indulge in the dark web to the extent that their actions become illegal. The primary infringement that we find on the internet via the misuse of anonymity is copyright infringement. Since geographic locations become redundant due to VPNs (which change the IP address to that of a different location), we find that anyone across the world can access information and content meant only for specific regions.
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With the fastest growing economy and the world’s second-largest population, India contributes to the big and key development of Artificial Intelligence. Artificial Intelligence with an avatar of more productivity and a high success rate, it becomes important to know more and more about its daily updates.
In October 2020, the Telangana Government collaborated with Intel India, International Institute of Information Technology, Hyderabad and Public Foundation of India to launch INAI[1].
Why choose Artificial Intelligence for India?
AI Portal
Jointly developed by MeitY and NASSCOM in June 2020, the Indian Government launched a dedicated artificial intelligence portal, Indian AI is slated as a central hub for everything[2].
AI challenges in India
Global Development
Each day there is unexpected technological advancement and up gradation taking place. Keeping this aspect in consideration, countries all over the globe have started contributing their investment in Artificial Intelligence. Further, countries are aware of the potential and social and economic benefits of developing and applying Artificial Intelligence. Some countries like China and the United Kingdom have estimated their GDP growth to be reached by 26% and 10% in 2030 which will be sourced from Artificial Intelligence related activities and businesses. The countries have begun to draft policies in this respect.
For instance:
Furthermore, UK has planned to build over 1000 government-supported PhD researchers by 2025 and set up a Turing Fellowship for the AI trainees. Even China has launched a 5-year programme to train 500 teachers along with 5000 students working on AI technologies. Moreover, studies by EY and NASSCOM reflects that by 2022, around 46% of the workforce will be engaged in entirely new jobs that do not exist today and will be much more dependent and related to AI[3].
Conclusion
The technological invasion is bringing problems at one end and at the same time is bringing a lot of opportunities on the other end. In the case of India, technological up-gradation has been a big piece of news in the past years. In general India’s digital footprint has been on the rise for the past years. Even the government is welcoming the technological invasion and is accordingly setting and framing up new policies in this regard. Further different agencies and institutions are setting up policies and developing programmes that help the trainees to be well versed with the technological age. With a little understanding of proper use of resources, India being a developing country is slowly progressing with the Artificial Intelligence age but at any time it can take a leap and surpass the forerunning countries. Big Companies like such as Airtel and Jio are setting up Artificial Intelligence labs which are designed to train their staff with the new machine learning system.
– Munis Nasir
(Student Editor, LawDIKTAT)
[1] https://analyticsindiamag.com/what-are-the-key-ai-initiatives-of-indian-government/
[2] https://analyticsindiamag.com/what-are-the-key-ai-initiatives-of-indian-government/
[3] https://www.taxmanagementindia.com/visitor/detail_article.asp?ArticleID=8851
]]>The Oxford Dictionary defines Artificial Intelligence as “the theory and development of computer systems able to perform tasks normally requiring human intelligence, such as visual perception, speech recognition, decision-making, and translation between languages”.[ii] Some applications can only do simplified tasks, such as adding numbers and therefore do not deserve to be referred to be intelligent. Other programs, on the other hand, are capable of doing challenging tasks.
Specific robust Artificial Intelligence programs can be used for facial recognition while searching for criminals in public. Artificially intelligent programs can be used to process and analyze large amounts of written work to spoken and spoken word to written form and make the transcription process more constructive and optimized.
Traditionally lawyers used to go through multiple documents to find mistakes, which took time & a cumbersome task as well. With the advancement of AI, difficult tasks can be handled diligently and more accurately, minimizing the lawyer’s precious time. Nowadays, law firms use AI to review documents, execute tasks related to Banking, Mergers & Acquisition transactions, contract reviewing, drafting, etc. It helps to save the lawyer time to review the contract, the risk associated with the contractual agreement and helps in automatically finding out essential aspects from a contract that can help carry out due diligence.[iii]
We generally use SSC Online, Manupatra, Lexis Nexis, etc., legal researching tools for legal research in law school. These tools are very effective for new generation lawyers. Legal research needs hours of time to find out the complex solution. This issue is addressed by using AI software, which may substantially increase efficiency and accuracy; it saves time by providing relevant case laws with a single click, which can help judges in delivering timely judgments. AI Ross, developed by IBM, has adopted many law firms worldwide, particularly in the USA, and is primarily used to vet legal contracts, conduct legal research, briefly summarize case laws, etc. Likewise, Linklaters LLP, a multinational law firm, is also developing an AI program, Nakhoda, intending to provide effective contract management and structured legal data.[iv] Cyril Amarchand Mangaldas is India’s first law firm to utilize artificial intelligence (AI) to analyse and improve contractual and other legal documents.[v]
Contract analysis is another time-consuming and complicated job performed by attorneys. Artificial intelligence-powered technologies, such as Natural Language Processing technology, may assist lawyers in expediting contract analysis, saving valuable time in the process. There are many technologies on the market now that do professional document analysis, extract essential information, and modify contracts to fulfil the needs of the client. From termination date to renewal date, what type of contract and notice can be sorted out quickly. In fact, Contract management and automated digital signature can be reviewed by AI.
The principal objects of Competition Law are to eliminate practices that may adversely affect the competition, promote competition in the market, protect the interest of the consumers, and ensure freedom of trade carried on by various participants in the market, with respect to the economic developments in the country. It is the imperative duty of the CCI to ensure that the conditions which have tendencies to kill the fair competition in the market are to be curbed. The CCI must ensure that the consumers reap the consequential benefits of healthy competition. Therefore, the CCI must address the competition concerns raised through technological developments, specifically AI’s ability to influence and predict demand and supply. AI has the ability to suggest conduct of pre-determined nature, which may invariably affect the competitive spirit of the market.[vi] Artificial intelligence is productive and contributes to giving information into IP, such as the search and registration of a trademark, patent, copyrights, etc.
Lawyers and legal firms are concerned that Artificial Intelligence or Machine Learning may threaten their survival, or, to put it another way, that Artificial Intelligence will replace lawyers. The jobs of office clerks, receptionists, customer service reps, analysts, marketers, doctors, attorneys, underwriters, and creative’s could be replaced by Al in the next decade. As Sundar Pichai, the CEO of Google, says, ―In the next decade, we will shift to a world that is AI-first.[vii]
With each document submitted to the AI, there is a more significant threat of cyber attacks since such material may be vulnerable to hacking or theft. Unless cyber security is strengthened, using AI for data exchange or storage may pose a greater risk. The application of AI in cyber security poses greater concern. It is still unclear whether AI-enabled systems are subject to manipulation, such as data poisoning and adversarial examples, and how to best protect AI systems from malicious attacks.
Using AI in a criminal investigation such as detecting weapons, facial recognition, forensics, multimedia analysis, ballistics, and crime scene reconstruction enables us to transcend human mistakes and serve as experts. On the other hand, as criminal law is primarily concerned with human behavior, AI cannot be a straightjacket formula. Criminal law involves the commission of the act (actus reus), the mental state (mens rea); it needs a fair trial process to conclude, so it can never replace the human mind. Justice DY Chandrachud, in an interview, said, “The idea of Artificial Intelligence is not to supplant the human brain or the human mind or the presence of judges.”[viii]
Artificial Intelligence is our near future, and slowly it will be part of our legal sector. Technological advances will help the lawyer to work accurately & efficiently, and it will produce more quality of service to the client. AI in law has numerous benefits, from researching to Judges’ decision-making, predictive technology, data collection, and data review, etc. Though AI can bring revolutions in the legal industry in the future, it can never replace the creativity of the human mind as it lacks human intelligence and empathy. As AI is not wholly immune from vulnerabilities, cyber threats, data breaches, and data manipulation, AI’s complete inclusion in the legal industry is not desirable without a possible legal framework and privacy protection. We need to minimize the maximum risk to safeguard its benefit.
– Sahid Ahamad
(Content Writer, LawDIKTAT)
[i] ‘Justice Chandrachud Inaugurates Paperless Bench in Orissa High Court- The New Indian Express’ <https://www.newindianexpress.com/states/odisha/2021/sep/12/justice-chandrachud-inaugurates-paperless-bench-in-orissa-high-court-2357590.html> accessed 3 October 2021.
[ii] ‘ARTIFICIAL INTELLIGENCE | Definition of ARTIFICIAL INTELLIGENCE by Oxford Dictionary on Lexico.Com Also Meaning Of’ <https://www.lexico.com/definition/artificial_intelligence> accessed 3 October 2021.
[iii] ‘How Kira Works’ <https://kirasystems.com/how-kira-works/> accessed 28 October 2021.
[iv] Ananth Kini, ‘Artificial Intelligence and the Legal Profession: An “intelligent” Way Ahead?’ <https://www.barandbench.com/columns/artificial-intelligence-and-legal-profession-an-intelligent-way-ahead> accessed 3 October 2021.
[v] Khushboo Narayan Shaji Vikraman, ‘“Cyril Amarchand Mangaldas to Be Asia’s First Law Firm to Employ AI for Legal Work” | Business News,The Indian Express’ <https://indianexpress.com/article/business/companies/cyril-amarchand-mangaldas-to-be-asias-first-law-firm-to-employ-ai-for-legal-work-4499676/> accessed 3 October 2021.
[vi] Sameer Gupta & Sankalp Udgata, ‘RETHINKING THE CONTOURS OF COMPETITION LAW: THE AI PERSPECTIVE’<http://iclr.in/wp-content/uploads/2020/05/RETHINKING-THE-CONTOURS-OF-COMPETITION-LAW-THE-AI-PERSPECTIVE.pdf>.
[vii] ‘Artificial Intelligence Will Take Your Job: What You Can Do Today To Protect It Tomorrow’ <https://www.forbes.com/sites/forbestechcouncil/2018/02/26/artificial-intelligence-will-take-your-job-what-you-can-do-today-to-protect-it-tomorrow/?sh=280bd3e44f27> accessed 3 October 2021.
[viii] Interview with Justice Dhananjaya Chandrachud, ‘Reassessing Legal Processes through Artificial Intelligence’ <https://www.youtube.com/watch?v=Fo3dzHjMVZA> accessed 3 October 2021.
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