.: Science & Technology

3:06 AM

Drones and the Challenges of Intellectual Property

Intellectual property as an autonomous branch of Commercial Law, is beginning to face a new technological challenge, since there are some inventions that are seeking to have a place on the market and claiming a protectionist environment and guarantees rights for their holders.

Big companies such as Amazon, Google, Honda, etc., are from Asian and North America countries who are focusing their efforts in protecting their inventions and preventing the exploitation of their rights by third parties, fighting a scourge that has become a big problem.

One of these technological advances are the Drones. This stunning object which has caused a stir in the last years, and that for a starter just a few group of people had the privilege to manipulate and use their technological capabilities on the military industry, in the capital cities for security, or to protect private zones, has change. Nowadays it has become an everyday item that aims to facilitate the life of many people.

The robotic technology advancement applied to this mini flying robots, come of course, with a challenge to protect them, so that each model turns out to be unique. The creators of these robots, and even intellectual property lawyers, must take on the challenge and shape the intellectual property rights for today’s needs, for this reason the IP industry have thought in creating a specialized branch called ¨Robotic Law¨.

It is necessary to identify what is going to be protected and why. Robots and their technology actions are characterized for the spectrum of Feeling-Thinking-Acting, which somehow opens the debate if the robots could have right holders in the future. The answer is clear, No, a robot can’t be holder of rights because it is not a person.

It is clear that its inventor, controller or holder, will be who responds penalty and civilly for the drone. If a person asks for the intellectual property rights over an invention that can handle so much responsibility and actions, any infringement done by the drone, will be attributable to the drone’s holder. For this reason, is essential to know which people can create, have and use a drone.

On the other hand, there has been a growth in the role of patents in multinational companies and emerging countries who dare to innovate in various materials by their profitability. Geographically, it is clear and rather easy to assume, that Japan, is the country that leads the patents requests for robotic purposes with a 39% on international applications, closely it follows United States and China providing between 37% non-negligible, and then the European Union which contributes with a 30%. This gives us an important map of which countries are those who must start to grow in terms of new inventions, leaving countries of Middle East, South America, South Africa, as calls to invest their efforts towards creations with a high innovation level and create something new for humanity.

All of this is important since not all intellectual property offices in the world are specialized and some are dedicated eminently to register without reviewing the intellectual property applications. In Colombia, an emerging country seeking become one of the giants in Latin American seeks to regulate the use of the drones in private property and anything that may violate the privacy rights of third parties, with the Circular Letter No. 2 of July 27th of 2015, issued by the Civil Aeronautics that regulates concerning aircraft flown from distance.

The patents office of Colombia, has decided to get highly qualified professionals who are willing to give their point of view on these issues, in order to stop a marathon of patent records, making this office in one of the best offices of intellectual property in the world, thanks to their haste when it comes to these issues.

Finally, there is a key point in this whole subject of drones and intellectual property and is that they are not only created for purposes eminently personal or attached to the industry that requires them. The inventors, seeking to protect themselves beyond the law, have begun to work on strategies to combat the "Patent Troll". Trolls act in an abusive, arbitrary and anti-competitive way, entering markets by buying patents, and with them, defrauding or harming companies that have legal and legitimate interests. It is necessary to join efforts so that this scourge is finished and the patents may be used to what its inventors actually created them. Generating innovation, progress and allowing that the eyes of the world be placed on emerging countries in this world so vast of intellectual property.

3:04 AM

Regulating Software Usage Rights in Detail

Computers have become indispensable in private households and even more so in companies. When using software, licensing agreements, in particular, must be observed.

Anyone who regularly works with a computer also uses appropriate software. This applies both to private use and the commercial sector. Several programmes are already pre-installed; others can be downloaded, purchased or developed specifically for the needs of a business. In order to be able to use the software legally, corresponding usage rights need to be agreed to. This frequently happens without any great effort by clicking on a confirmation button.

However, particularly in the case of companies that require special software, there is considerably more variation in this regard. First of all, one must distinguish between non-exclusive and exclusive licences. While a non-exclusive licence grants the licensee a right of use, the licensor – generally the business which develops the software – can also grant the same rights to other users and continue to market the software.

An exclusive licence, on the other hand, grants the customer an exclusive right of use. In this case, the licensor is normally not allowed to issue further licences. For the business that has acquired an exclusive licence, the software can provide a competitive advantage vis-à-vis the other market participants or more effectively structure workflows. It is therefore enormously important for both sides to precisely define the usage rights so that there are no subsequent misunderstandings or legal disputes. Points such as the scope of the usage rights, duration of exclusive use, issuing of sub-licences to third parties and, of course, the licensing fees need to be clearly regulated in the licensing agreement.

In order for the drafting of the agreement to be as detailed and clear as possible, a lawyer versed in software law ought to be consulted. He will also know which other fields of law need to be taken into account accordingly. Copyrights, trademark rights or patent rights, for example, need to be taken into consideration. Should legal disputes nevertheless emerge at a later stage, the lawyer will assume the role of representing your interests and enforce claims and rights against third parties.

3:02 AM

Cyber Investigation - How Prepared are the Indian Police?

India has emerged as a favorite hub for cybercriminals, mostly hackers and other malicious users who use the Internet for committing crimes. As per a study conducted by Assocham-Mahindra SSG, total number of cyber-crimes registered during 2011-14 stood from 13,301 and 1, 49,254 respectively and rising at an alarming rate. In 2015, the number of cyber-crimes in the country may double up to 3 lakhs and could pose serious economic and national security challenges.

Emerging trends of cyber-crimes include hacking, identity theft, spamming, phishing and cyber stalking. With these emerging trends in crime, it is high time for the Indian police to revamp and reform investigating methodology for a successful prosecution of such cyber case. The Indian system of policing and criminal investigation is still stuck in the old ways of information gathering and beating
out a confession from the suspects. The police force are completely untrained on modern methods of criminal investigation, which requires skills for managing and operating highly sophisticated technologies.

Several potholes exists within the system due to which a gap continues between reporting of crime, arresting a criminal and finally ensuring successful prosecution of the accused in Cyber Cases. Jurisdiction remains highly debated issue till date as to the maintainability of any suits till date. Today with the growing arms of cyber space the territorial boundaries seems to disappear & the concept of territorial jurisdiction as envisaged under S.16 of Criminal Procedure Code and S.2.of the Indian Penal Code will have to give way to alternative method of dispute resolution.

Police are facing this particular problem as there remains a sense of confusion as to whose jurisdiction the case will fall. Let us take an example; a school teacher finds out that a sum of 30,000 INR was withdrawn from his savings account without his knowledge and permission. The amount withdrawn was from ATM located outside the city limits and some outside the state limits. In these situations, the complainant is faced with a problem of filing the complaint at which jurisdiction. Though S.75 of the Information Technology Act provides for extra-territorial operations of this law, but they could be meaningful only when backed with provision recognizing orders and warrants for Information issued by competent authorities outside their jurisdiction and measure for cooperation for exchange of material and evidence of computer crimes between law enforcement agencies.

A law regulating the cyber-space has already been enacted by India thought there is lack of any operational manual which describes the methods of conducting an investigation relating to cybercrimes. A SOP (Standard Operating Procedure) has to be set so that the present force can conduct its investigation without any ambiguity.

With the advent of cyber cells at various cosmopolitan cities in India, there is also an imperative need to build a high technology crime & investigation infrastructure, with highly technical staff at the other end. The current staff of cyber cells comprises of a mixture of police officers and IT experts. While additional recruitment is welcome, the effort should be to improve the technical capabilities of the police department as a whole, rather than only the cybercrime cells. Police are quite often handicapped in undertaking effective investigation for want of modern gadgets such as high-capacity data-transfer tools, software’s, designed for analysis of phones, tools for recovering passwords using brute force, etc. Forensic science laboratories are scarce at the district level, which can render timely assistance to the investigating Police.

The result is that Police heavily lean towards oral evidence, instead of concentrating on scientific and circumstantial evidence. Though various governments have taken this issue into account in the recent years, a definite example can be taken of Maharashtra government; the Maharashtra government has planned on tackling cyber-crime by deploying 1000 police officers as cyber investigators. The statements/FIRs/reports recorded are not fed to the computer immediately so as to maintain a database because there is no computer network or there is no personnel trained in the job or for want of specific instructions. The benefits of online filing of FIR needs to be implemented to reduce the burden on police.

SUGGESTIVE MEASURES

There is a need to ensure specialized procedures associated with expertise manpower for prosecution of cybercrime cases so as to tackle them on a war footing. It must be ensured that the system provides for stringent punishment of cyber-crime and cyber criminals so that the same acts as a deterrent for others. Presently, most of the offences committed under the Information Technology Act are Bailable with punishment up to 3 years imprisonment. This punishment should be increased to a term which would change the mindset of a cyber-criminal of committing similar and like offences again. Separate bench are required to be constituted for fast tracking of Cyber cases in an effective manner. With the constitution of cyber judges, the law enforcement agencies can prove the merits of their respective cyber cases without any hindrance.

Just like the U.S. Secret Service or the FBI, which provides training to state and local law enforcement officials in cybercrime forensics and related topics, similar programmes can be conducted by CBI, which has its separate cyber cell and a manual for conducting investigation. The methods of the CBI can be used by the Police include close supervision of investigation of the important cases by senior officers and evolving a mechanism so that the investigating officers and Superintendents of Police can get legal advice during the investigation.

Cyber projects like National Cyber Coordination Centre (NCCC) of India, Cyber Attacks Crisis Management Plan of India, Internet Spy System Network And Traffic Analysis System (NETRA) of India, Crime and Criminal Tracking Network and Systems (CCTNS) Project of India, etc. have still not been implemented successfully by Indian government and there is an urgent need to implement these projects in India as soon as possible.

Quick response to the Interpol references and bilateral requests, liberal sharing of forensic technology and more cross-country training exchange programmes besides timely alert can be a major step to curb the cyber menace.
Cyber crime can only be effectively countered when there is a proper coordination and guidance available from various stakeholders, such as industries, local police as well as the state and central governments. To facilitate such cooperation as well as to give impetus and to govern the effective implementation of various initiatives, we need to have adequately tasked and staffed agencies working at various levels. Indian Computer Emergency Response Team (CERT-In) is the national nodal agency set up to respond to computer security incidents as and when they occur. Some of the activities undertaken by CERT-In toward cybersecurity include coordination of responses to security incidents and timely advice regarding imminent threats, conduct trainings on specialized topics of cybersecurity and development of security guidelines on major technology platforms.

There should be an e-filing system for filing of FIR keeping in mind the digitalization of many government bodies and also to reduce the burden on the victims to approach physically at the police station. Process re-engineering is required to ensure that the current cumbersome procedure of a complainant having to go to a police station to file an FIR is replaced with a single emergency response interface, which can bring the police to the doorstep of the victim in distress. There is a need of a centralized online cybercrime reporting mechanism in India, which provides victims of cybercrime, a convenient and easy reporting mechanism that alerts authorities of suspected criminal or civil violations. Also for law enforcement agencies at the national, state, and local level, there should be a central referral mechanism for complaints involving cybercrime.
In many cases, private corporations have more experience with cybercrime investigations than local police agencies & henceforth, the Police can seek cooperation with private corporations without compromising the security. For example in the United States, a privately-led Identity Ecosystem Steering group (IDES) has been established to support the National Strategy for Trusted Identities in Cyberspace (NSTIC).

A number of police agencies have formed partnerships with computer science departments at local universities. These partnerships not only provide expertise to the police, but also serve as a recruiting tool for students who have an interest in cybercrime and policing. A knowledge hub thus can be established which can also attract students to pursue a career as cyber investigators.

2:59 AM

Network and Information Security in the EU

The rapid rise in the use of digital technologies in the healthcare sector is not lost to cyber criminals.

In USA, in particular, cyber threat groups have alarmingly shown a growing interest in healthcare industry, with medical records of more than 40 million Americans being breached in 2014 leading to losses of nearly $12 billion (calculated by the Ponemon Institute). Incidents such as the “hacktivism” cyberattack on Boston Children’s Hospital (April 2014) and the breach of 4.5 million health records at Community Health Systems ‒ the second largest hospital chain in the country (August 2014) give an indicative image of the booming business. At the other side of the Atlantic, according to a report performed by the UK Office of Cyber Security and Information Assurance, the cost for IP theft within UK pharma and biotech sector is estimated at 1.8 billion at an annual basis. For this reason, cyber security measures are particularly important for IP-rich business sectors, such as the pharmaceutical and biotechnology sectors, which invest heavily in research and development projects and rely on them to create market advantage in a fiercely competitive global industry.

After intensive work, on 7th of December, 2015, the European institutions reached an agreement over the European Commission’s Proposal on the Network and Information Security Directive (NIS), the first attempt of the European legislator to regulate cyber security at European Union wide level.

Specifically, the Directive imposes security and reporting obligations to entities in critical sectors such as transport, energy, health and finance so that they ensure that the digital infrastructure they use in order to provide their services are secure enough to withstand cyberattacks. However, operators of essential services, including both private and public entities, will be identified by national legislation of each member state based on the following criteria:

The entity provides a service which is essential for the maintenance of critical societal and/ or economic activities.
The provision of that service depends on network and information systems; and

An incident affecting the network and information systems of that service would have significant disruptive effects on its provision.

According to the text of the Directive, healthcare providers[1], as defined in Article 3 g of the former Directive 2011/24 EU “on the application of patients’ rights in cross-border healthcare”, is a typical description of essential services. For instance, the term “healthcare providers” covers hospitals and GB surgeries as well as potential private sector healthcare businesses.

In order to determine if the Directive applies and which national law does, it is crucial to define the operator establishment, as the effective and real exercise of activity through stable arrangements (branches and subsidiaries will be also included) within a national territory.

Another important feature of the new legislation is the implementation of a reporting scheme, defined by the Member State in question. Under the latter, the company must notify the competent authority without undue delay of incidents that have a significant disruptive effect on the provision of a service. Regarding the health sector, the number of patients under the provider’s care per year is the most significant factor to determine the gravity of the breaches. Furthermore, established authorities will have the power to audit the operator compliance with the security standards and require for information needed to assess the security of their networks. The authorities also have the power to demand evidence of “effective implementation” of the security policies of the companies.

Concerning the transposition into domestic law, the Member States will have up to 21 months from the publication of the NIS Directive to publish national laws that implement the NIS Directive and to bring them into force.

Adopting and implementing legislation to impose security measures and monitoring systems will contribute to stakeholder trust in digital health applications. Some parties support the attempt of the European legislator to improve the individual capabilities of EU Members and to enforce cooperation on cybersecurity, as well as to promote a high level of risk management practices and a set of minimum standards for the network security. However, given that the final text has not yet been adopted and that Directives usually entail important differences in their incorporation into national law, some parties suggest patience, especially in seeing how they will approach the co-operation requirements under the NIS Directive to create co-ordinated responses to incidents.