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Is Unauthorised Access of Online information hacking? A researcher Case Law

Facts of the Case:

Mr. 'X', a research scholar in Hyderabad, bypasses the technological security measures set by an online database provider offering various E-Journals on a 'Pay for use' basis. The provider's security measures are designed to protect the copyrighted material it offers, and this act raises an essential question: Whether Mr. 'X' has committed any offense under the Indian law.



Issues:

The key issue under consideration here is to evaluate the legal liability of Mr. 'X' for bypassing the security measures of the online database, thus gaining unauthorized access to copyrighted material.



Rule of Law:

The legal framework in question pertains to the Information Technology Act, 2000 (amended in 2008) (hereinafter referred to as 'The Act') and the Copyright Act, 1957 (amended in 2012).


Under The Act:

  1. Section 65A: This section provides for protection of technological measures used for protection of rights. Any circumvention of an effective technological measure applied for the purpose of protecting any of the rights conferred by the Copyright Act, with the intent of infringing such rights, shall be punishable with imprisonment which may extend to two years and shall also be liable to fine.

  2. Section 66: This section deals with hacking and related offenses, wherein if any person, dishonestly, or fraudulently, does any act referred to in section 43 (including unauthorized access to a computer), he shall be punishable with imprisonment for a term which may extend to three years or with fine which may extend to five lakh rupees or with both.

Under the Copyright Act, 1957:

  1. Section 63B: This provision penalizes anyone who knowingly makes use on a computer of an infringing copy of a computer program. The person shall be punishable with imprisonment for a term which shall not be less than seven days but which may extend to three years and with fine which shall not be less than fifty thousand rupees but which may extend to two lakh rupees.


Application and Discussion:

Circumventing technological measures to access copyrighted material generally implies unauthorized access or violation of the protection systems. The intent, purpose, and the extent of unauthorized use play a significant role in determining the liability.


In the given case, Mr. 'X' bypasses the security measures for the purpose of his research, which doesn't suggest commercial use or further reproduction. His act could be justified under Section 52(1)(ac) of the Copyright Act, which allows for "the transient or incidental storage of a work or performance purely in the technical process of electronic transmission or communication to the public."


However, this defense might not be sufficient, considering Mr. 'X' deliberately bypasses the protection system, which according to Section 65A of The Act, is an offense.

A pertinent case to mention here is the 'A&M Records, Inc. v. Napster, Inc.' where the court held that even if Napster was used for research or sampling, the wholesale copying of copyrighted material, even for personal use, constitutes infringement. In line with this case, Mr. 'X's activities could be viewed as infringement.



Conclusion: Unauthorised Access Online, a Case Law

Considering the existing laws and precedents, Mr. 'X's act of circumventing the technological measures is legally dubious. Under Section 65A of The Act, his act could be considered an offense punishable with imprisonment and fine for unauthorised access of online content.


However, the context of his action, that it is for research purposes and not for commercial gain, could offer some legal leeway. As per Section 52(1)(ac) of the Copyright Act, there could be an argument of transient and incidental use.


Yet, with the specific act of deliberately bypassing technological measures, he could still be held accountable. It's important that Mr. 'X' seeks proper authorization or subscribes to the 'Pay for use' policy to conduct his research within legal boundaries. His action underscores the ongoing debate between unrestricted academic research and protecting intellectual property rights. It further emphasizes the need for clear laws regarding fair use for educational and research purposes.

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