Electronic Evidence w.r.t. IP

 

Digital forensic (of course, isn’t my domain) involves analysis of vulnerabilities via logs, metadata, flow control, network connections, registry data, event logs, storage, file integrity, etc. to detect and track security incidents & compile such data as evidence. This blog basically surrounds electronic records aka evidence w.r.t. IP only, which is in continuation with one of my earlier blog elucidating concept of Online Contracts; and of course further, along with it, my alternate concern + suggestion. Basically, these things hardly change (except the Tech part), which are written in several other similar books, articles or journals. And writing case precedences is mere an act of compilation. 

We’re living in a Digital World Order & eventually shalt move from an era of human dependant to machine dependant, which would be beneficial for humanity. So, what’s an electronic record? One which is stored or transmitted in electronic form or micro film or computer generated micro fiche. And this becomes Evidence under Sections alike S. 65 A in accordance with the provision of S. 65 B of Evidence Act. Whilst S. 62-63 mentions about the primary vs. secondary evidence, wherein, former is the original set; whilst latter is the one derived from the original. And S. 65 B (2) sets some conditions for the electronic record to be considered as an evidence, for instance, the said machine should’ve been regularly used in normal or ordinary course of action, must’ve in the possession of the rightful owner, the information derived had been fed to computer in the ordinary course of activity etc. which needs to be produced as per S. 65 B (4) with certificate of authenticity.   

Now, my concern is, when the entire data is shifting to Cloud, Mail Exchange Servers, Scanned Original copies are everywhere, then, except in case of security related issues or where the evidence is restricted on a stand alone machine; printouts/copies of such data should be considered as Primary only & shouldn’t require any certificate of authenticity, of course if filed along with a self Affidavit. Albeit S. 65 also mentions about filing the secondary if the primary is inaccessible.   

 

In IP; Copyright, Designs, TM are all prime facie. And just alike Evidence User, printouts of originals should be acknowledged as Primary if filed along with self Affidavit. And this may not be restricted only to IP. And furthermore, the conditions mentioned under S. 65 B, except in cases of security related issues or where evidence is on the standalone system; don’t add up for all machines as every other machine becomes Secondary record storage comparing to Mail Exchange Servers/Cloud/Distributed Network etc. in which case could S. 65 be applied? If not, then the above might be debated to be complied upon.😇

© Pranav Chaturvedi