Information Technology Law - Case Study Example

IT Law Contents Title page 1 Table of contents 2 Introduction 3 Case scenario 4 Analysis 5 Discussion 6 Conclusion 11 Bibliography 12 IT Law The advent of internet in 1990’s has revolutionized our society. The advances in internet use brought in its wagon lot of issues like privacy, security, and ethical. This made the extension of information technology laws to the internet. Problems of Data Protection, Intellectual Property Rights, and Crime on the internet started rising. As job opportunities, and E-commerce increased on the net contracts and terms and conditions issues needed a broader application. Case scenario-On graduation ‘A ‘ gets job as web developer project manager in a small web company –Wild West Web (WWW).This company was set up by a three graduates three years ago before their graduation ( that is while studying in the university)They did not have any previous experience. MD of the company told ‘A’ since she has done a module in IT Law, she can write an essay on legal issues related to practice or policies in the company. This will give ‘A’ working knowledge of the company and in case she detects any problems, then this can be raised with legal specialist. This company has a full order book designing and maintaining websites for small local businesses. But most work is put on its own website- StudentBar.com. The product aims to integrate successful product genres into an engaging virtual environment. Here online, past and present students can meet, reminisce and swap files, share music, mails, graphic files and chat. But when you look this site, you can notice quickly that there is active sharing of MP3 and adult files, and gossiping about their old lecturers and colleagues. There were also complaints from lecturers regarding these comments, asking for immediate removal of material and archve.There is also an issue of old assignment solutions being circulated to present students. The student Bar has a plethora of links to other sites including deep links well inside other sites providing up to date news, games, information, hacking resources, music, gossip, and academic cheat resources sites. Another main problem –Mr.’ X ‘one of the core development team member resigned over an argument over promotion. It was also found that he was selling the details of the subscribers to the site on to other agencies without the knowledge of the WWW. Now they are thinking of doing it themselves. Mr.’X’ was taken, despite being renowned by his disposition to hacking, as he has worked previously in a similar site in the past. So he was considered for his expertise and he brought useful source code for the new project. There are also concerns that the recent viral attack on the site may have originated from this disgruntled employee, who is threatening to launch an identically themed site using no doubt the code he developed at WWW. The MD is aware there was no mention of intellectual property rights in the cursory job contract used for this employee. (MD notes in passing that he would welcome any idea of contract for his staff.) Some subscribers have complained that they have been approached by other organizations that appear to have information about them, which must have originated from the StudentBar.’X’ who resigned over a payment and promotion row, is also demanding to see any file about him in the possession of WWW which give reasons why he was being, in his view, blocked from promotion. There were rumours about his honesty and misappropriation of company resources. Links to adult files were recently removed despite moans from the subscribers. It is also to be noted there is marked absence of registered software in the premises You are also asked what sort of ‘subscription contract’ and terms and conditions you would expect in this sort of site with a view to shielding /limiting the liability of the providers of the StudentBar. At present there are 2 Directors who discuss all issues at a weekly meeting and then allocate responsibility according to work load. (They both project lead/design code). They employ 3 full time programmers and the occasional contractor according to deadline /workload. Analysis of the case showed in StudentBar there are issues of copyright infringement -in the students swapping music, graphic files. Streaming media, linking framing, deep linking all these pose problems to’ fair deal ‘practice. Internet service provider is also legally involved in this by providing necessary software thus creating a congenial environment. Gossiping about the Lecturers and colleagues can raise issues of defamation .Defamation Act 1996 impose liability for libel and slander (untrue statements which damage someone’s reputation)1 In this case Lecturer’s demanded the removal of material and archives and ISP having come to know of the problem should have responded quickly, otherwise Art. 14, Directive of 2000/31 states that ISP is liable for court injunction order. Issue of sharing of old assignment solutions is not legally binding since it is not copyrighted material and once it is old one. Another problem is of’ X.’.He was misusing personal data of subscribers –violation of Data protection Act, 1998 can be invoked. Since the contract of X did not mention about IPR, his taking of the code he developed while at work, has no legal binding showing importance of proper contract and terms and conditions for employees. Again personal data verification by X can have problems since it can leak any 3rd party information especially when he is renowned for his dishonesty and hacking. Allowing him to see the files are a threat unless there is the latest Data refilling system where by only his personal data while can be taken. Moreover there is a need for licensed software and Proper contract for the consumer and employees, for better transparency at worksite. Discussion- Here 3 legal issues are discussed in detail Intellectual Property broadly means the legal rights which result from intellectual activity in the industrial, scientific, literary and artistic fields Countries frame laws to protect intellectual property , 1. To give statutory expression to the moral and economic rights of creators in their creations and in the rights of the public in access to those creations, 2. To promote as a deliberate act of Government Policy, creativioty and the dissemination and application of its results and to encourage trading which contribute to economic and social development. Thus intellectual property Laws aim to safeguard the creator and other producers of intellectual goods and services by conferring on them certain time limited rights to control the use made of these creative works. There are 4 main types of creativity 1 Patent for invention, 2 Trademarks for Brand identity 3 Designs for product appearance and 4.Copyright for material. Copyright is given to original works it is not registered but arises when work is finished. It also protects computer software. In practice consider the following- Do not copy anything without permission. do not assume license for one use will cover other use, donot assume license for one company in a group covers other companies in the group, do not assume that a license can be transferred to a 3rd party, do not assume that information in a public domain is free of copyright, buying a database does not confer the right to post letters to all customers in it, make a clear contract as to among the people working on a product who will own the resulting rights. According to Copyright, Designs and Patent law in UK, if there is no 2prior agreement otherwise, by default, the author owns the copyright, not the person who pays for it., In the case analyzed above’ X’develops the code and in his contract it was not mentioned who owns the intellectual property . ‘Fair Use ‘is an affirmative defense to a claim of copyright infringement. It is a privilege not right. Courts use four fair use factors to decide 1 Purpose and Character of the work=17 USC 107 (1) Whether it is used for commercial or transformative use. If it is commercial, then it is against fair use, while transformative use enhances the goal of helping science and useful arts so it is fair use. 2 Nature of the copyrighted work17 USC 107(2) Creative work is given copyrights than derivative and factual compilations. If the creative work is unpublished or published is the yardstick for fair use judgement Use of unpublished creative work is not fair use. 3 amount and substantiality of portion used 17 USC 107(3) No absolute rule as to how much can be copied and again considered fair use. Supreme Court held that in applying standard, it must be examined in context, 4 effect on market value of the original 17 USC 107 (4) This must always be judged in association with other3 criteria. Fair Use on Internet Theoretically merely browsing involves copyright infringement, Courts have held that websites and ISPs liable for copyright infringements for various internet related functions like linking, media streaming, file sharing and storage, In Kelly v.Arriba software corporation (Jennings CA, CRS 2002), the lower court in dicta commented on the use of deep links by a ‘visual search engine’ court noted that even if it will bypass the front page and users will miss some photo graphs advertisements and promotional messages, this is insufficient evidence of harm or adverse market impact on the plaintiff’s copyright material. Inline links are more problematic than outline and deep links .When appealed to Ninth Circuit Court of Appeals said the user could click on the thumbnail images and see the full version on Arriba’s website using inline links and frames is not a fair practice. Peer to Peer sharing of files amounts to unauthorized trade of copyrighted material, where the copyright holder’s reproduction and distribution rights are implicated. ISPs are secondarily responsible for these infringing acts of the users. In A and M Records v.Napster various music companies filed case against Napster ISP,which allowed sharing of music files This made Peers to search for particular files of interest and share it among the peers. Rejecting Napster’s argument of fair use by peers, Court emphasized that use was commercial in that internet users received for free, what they should have normally bought as CDs.Jennings CA 2002 Streaming Media provides access to wide variety of visual and musical works, allowing users for retransmission of radio programs, concerts and other musical events. Storage of digital files In UMG Recordings v. MP3.com various record companies sued Internet Company MP3 for storing music files created from personal copies of CDs sold by the plaintiffs.MP3 argued it was a fair use. But Court rejected the argument saying simply copying the recordings to facilitate its retransmission through another medium is not fair use. Thus the WWW in the case under study should remove software for inline links and framing, add better licensed software for games to attract peers. Data Protection 1998 came into full force in 2001.It was amended by Freedom of Information Act 2000 to include issues related to public authorities like colleges and universities.DPA gives certain rights to individuals regarding information held about them. It places obligations on data controllers to provide necessary information to data subjects. Persons collecting data should notify to the information commissioner paying an annual fees of 365 pounds. Anyone collecting personal data must see the data is Fairly and lawfully processed, Processed for limited purpose, Adequately relevant and not excessive, Accurate and up to date, Not kept longer than necessary, Processed in accordance with individual rights, Secure Not transferred to countries outside E European area unless the country has adequate protection for the individual. The information Commissioner’s Office TICO oversees these 2 acts. While disclosing personal data both acts need to be considered When releasing personal data if there is release of 3rd party information, then Section 7(4) and(5) of DPA 1998 should be considered .If 3rd party information is sought then FOIA 2000 should be referred .In releasing information about living individuals DPA 1998 should be dealt with.. Personal data Relevant Filling systems and Durant case According to DPA1998, personal data means any information that relates to identifiability of an identified or identifiable person. In UK Court appeal in the case of Durant v. Financial SA 2003, court did not consider the issue of identifiability but the meaning of relate to The 2 Issues that will help in identifying relate to an individual 1 whether information is biographical,2 information should have individual in the centre of focus Exemptions to data subjects access ,when request is not in writing, request fee not received, requester not able to verify the identity on request, disclosure will require 3rd party information to be released where consent is not available In the case under study ‘X’ wants to verify his files which can amount to 3rd party‘s data disclosure if the file is not kept separate. Contract Consumer and contract Buyer should read terms and conditions of different company websites and should choose the good company not the least costly one the criteria. They can form their own purchase website and publish it .In forming up-to-date terms and conditions legal advice can be sought. Website should ideally contain following legal elements Copy right notice Trademark registration notice Privacy policy Terms and conditions for use of the site, after reading the user should sign it. Under business act 1985 and company’s act 1985; certain statutory information should be provided on the business letters, invoices, it is wise to give this information on website and E mail. Points to watch while forming contract by consumer Make sure conditions are given to the supplier State that business only on those terms are accepted, Make sure the terms are there on purchase order also If the supplier sends the terms back reject them Negotiate the terms for bigger contracts. Employee contracts Should show definite internet policy, email policy, and intellectual property rights, and Should be signed by the employee If any legal problem, employee can be sued in their home country while employer in either his country or employee’s country. Conclusion Information technology along with computer and internet has revolutionized the world .They form the significant technological developments of the 20th century. As the activity increased it brought lot of issues like Ethical, Security. Copyrights Crime also increased. Thus when all type s of activities increased a set of rules became mandatory, to regulate this. Whoever handles this field should be aware of the rules for smooth sailing. Here Data protection and copyrights law and contracts are discussed Bibliography Johnson D.G, 2001, Computer Ethics, Pearson Education Charlesworth A, 2005, JISC Legal briefing paper, Data Protection Gross RD, Understanding your rights-copy rights protection in the internet Jennings CA, 2002, Report for Congress (received through CRS web Singleton S, 2001, E- Commerce a practical guide to the law, Gower WiddsonR, 1998, Data Protection Law –key changes W3C, intellectual property rights activity page Read More