This article has been written by Mr. Daniel Samy, a law graduate in 2023-year, student at M.S. College of Law, Thane.

INTRODUCTION-

In past decade, e-commerce has gained a marvelous momentum in India. Also, availability of internet at the distasteful prices made the sellers and buyers easy in touch of their available goods and services. E-commerce (electronic commerce) is the buying and selling of goods and services over an electronic network i.e., on the internet. Nonetheless, like any remaining prospering areas, there are difficulties tormenting this area.

Also, one of which is insufficient and wasteful legitimate and administrative structure ready to adapt to guarantee freedoms and commitments of the contracting parties. As the essential of a valid contract under the Indian Contract Act 1872, when fulfilled on online contract is valid and enforceable under Indian Law. The Information Technology Act 2000, The Indian Contract Act 1872, and The Evidence Act 1872 ascertain the validity and enforceability of e-contracts in the country. Simply, e-contracts are known as an agreement which is made through electronically instead of physical meetings between the parties involved in the process of the transaction in their business dealings. E-contract forms a significant part of e-commerce. E-contracting is a fragment of e-business. The Contracts which are entered by the parties verbally or digitally are subject to the same fundamental principles of Contract law. All the contracts must include all these important elements in respect to get them enforceable and legally binding in India. In today’s business world, they are becoming increasingly paramount with rapid digitalization and e-commerce to accomplish a significant number of business transactions in a variety of industries. 

BRIEF–

The Internet has changed the face of business and its dealings with rapid transformation in the transactions including agreements and contracts. Nowadays major commercial businesses are sealed using the medium of the internet and many e-commerce deals are closed. The dealing in E-commerce is mostly sales related i.e., selling of products and services that depend on the intellectual property and its licensing. Selling of designs, script, videos, products, consumer goods and many different products which have relations and protected by some form of intellectual property that is traded on the internet on the various e-commerce platform. If we take very random figures of such e-commerce dealing on the internet, then it is very humongous and beyond the figures of imagination. Simultaneously, these products or services relate to the intellectual properties of the owners/makers. It’s obvious that intellectual property laws are pivotal to protect the products and services from theft and loose of authenticity of the products and services deal through the e-commerce agreement. 

The quick notoriety and acknowledgment of web-based business all through the world is driven by the more

prominent client decision and further developed accommodation in business exchanges with the assistance of

web where the seller or trader can sell his items or administrations straightforwardly to the client and the instalment can be made electronic asset move framework box check card, Visa or net banking and so on.  One of the key legal implications of the growing e-commerce industry in India is the protection of IPR. E-commerce businesses in India must ensure that their products and services do not infringe upon any existing patents, trademarks, copyrights or design rights. This can be a complex issue, as many e-commerce businesses sell products from multiple suppliers, some of which may not have proper IPR clearance. In such cases, the e-commerce business may be held liable for selling infringing products. E-commerce companies can prevent these problems by ensuring IPR compliance in a number of ways, including by frequently checking for products that violate intellectual property rights, performing due diligence on suppliers and products, and having robust systems in place to address IPR infringements. To safeguard their own intellectual property, e-commerce companies can also register their own patents, trademarks, and copyrights. In the event of an IPR dispute, e-commerce businesses can take legal action against infringing parties, or they may be faced with legal proceedings themselves if they are found to have infringed upon someone else’s IPR. E-commerce companies need to make sure that they have the right IPR clearance and abide by all relevant rules and regulations to reduce the risk of IPR disputes.

Due to the lack of physical inspection and verification, most products sold via e-commerce platforms are more vulnerable to fraud and forgery. In addition to confusing customers, counterfeit goods can damage a brand’s reputation and create financial and reputational damage.

Types of online contracts

The most common forms of e-contracts are clickwrap, browse wrap and shrink wrap contracts.

Click wrap contract: – The party’s positive acceptance is obtained in click wrap contracts by checking an ‘I agree’ tab with a scroll box that allows the approving party to see the terms and conditions.

Browse wrap contract: – By utilizing (or surfing) the page, the negotiating party agrees to the terms of a browse wrap contract.

Shrink wrap contract: – Contracts of shrink wrap are boilerplate deals, licensing agreements, or other terms and conditions that are bundled with the products. The consumer’s use of the product determines whether they approve of the contract.

As we are aware that there are following types of intellectual property rights covered under Intellectual Property Rights Policy Management (IPRPM) framework: (a) Patents, (b) Trademark, (c) Industrial Designs, (d)Copyrights, (e) Geographical Indications, (f) Semiconductor IC Layout Design, (g) Trade Secrets, and (h) Flora Varieties.

The framework was launched in the form of National Intellectual Property Rights Policy 2016 encompassing all IPRs into a single vision document setting in place an institutional mechanism for implementation, monitoring and review of IP laws. The policy includes seven objectives designed for creating an environment that encourages innovation and creativity by providing stronger protection and incentives for inventors, artists, and creators. There are several gauges undertaken to achieve the given objectives. Among gauges taken are obligingness and time saving in IP filing and disposal, fee concession for Startups, MSMES, Educational Institutions and expedited examination for certain categories of applicants. Details of the objectives and activities undertaken since the adoption of this policy are presented below: 

Details of the objectives and activities undertaken under the National Intellectual Property Rights Policy 

1. Changes in IPR Laws and Rules – improving procedural requirements in processing of applications to speed up grant and disposal.
2. Decide to promote e-commerce (agenda setting) – this requires e-commerce awareness.
3. Deciding on issue filtration, including defining the stakeholders in the process.
4. Defining the issue and forecasting the goal.
5. Setting objectives and priorities (what do we want and how we will know we have it).
6. Analyzing the options (not only what is easy but being open to alternatives).
7. Implementing the policy and strategy.
8. Monitoring and evaluation (in a participatory and analytical way).
9. Maintaining, adjusting and re-evaluating—continuously.

Issues involved with e- contracts which is apparently faced by all nations-

• Privacy
• Security of systems
• Improper acceptance
• Online Identity
• Consumer Protection
• Judicial Issue
• Parties to Contract
• Signature authentication
• Loss due to technical error

Case Law- 

Super Cassetes Industries Ltd. vs Myspace Inc. & Another on 29 July 2011

SUPER CASSETES INDUSTRIES LTD.                  ….. Plaintiff

MYSPACE INC. & ANOTHER                       …… Defendants

Plaintiff alleged that Myspace violated his copyright by allowing copies of his infringing material to be posted on the Myspace platform. The plaintiff approached the Delhi High Court and filed a suit seeking injunction and damages. The question is whether Myspace can be held responsible for third-party publishing on its platform?

Arguments made by the plaintiff.

Counterfeit copies of some of his works are available on the Myspace platform.

That Myspace was aware of such infringing material.

This Myspace committed fundamental copyright infringement of the plaintiff.

Arguments made by Myspace.

The content on Myspace was user generated and they had no control over the same.

Provisions in user agreements prohibiting users from posting infringing content cannot be assumed to imply Myspace’s knowledge of specific instances of infringement. 

Although Myspace has received a limited license from users to modify content, this modification is limited to the automated ad insertion process. 

Myspace had rights management and notice and takedown processes, which the plaintiff could use to protect its rights.

Important Sections mentioned–

Section 51(a)(ii) of the Copyright Act, 1957, Section 79 of the Information Technology Act, 2000 and Section 81 of the IT Act.

The initial order of the Delhi High Court stated that Myspace to, among other things will ensure:

That no work under T-Series will be uploaded to its platform without inquiring about the ownership/rights of the work. 

Because T-Series has notified Myspace of any of its works being available on the Myspace platform, such works will be removed within one week of receipt of such notification. 

The courts have set out the boundary of deciding the locale considering the degree of intelligence and business.

nature of the trading of data that happens on the site in a specific purview and have classified exercises of the sites to into three regions:

1. Completely intuitive destinations where clients buy labor and products, trade data or then again documents, or go into arrangements.
2. Completely latent destinations where data is accessible for individuals to see; and,
3. Locales some place in the center, with restricted association.

Conclusion

The quick development of web-based business has made the requirement for dynamic and successful administrative systems, which would fortify the lawful foundation that is essential to the progress of web-based business in India. It has forever been the charge that the feeble network protection regulations in India and the shortfall of a legitimate internet business administrative system is the justification behind what Indian individuals as well as the online business enterprises face such countless difficulties in partaking in a buyer well-disposed and business-compatriot online business climate in India. Recent developments in India, be it a new IPR policy or the provision of an effective toolkit in the form of a checklist will benchmark the police against intellectual property crimes or encourage Encourage innovators to rapidly examine issues related to intellectual property. patent if they file first in India, all of this is part of a much-needed effort to improve overall IPR security and encourage the creation of more intellectual property in the country. Protection in e-commerce is a complicated challenge, particularly when addressing the online sale of fake goods. This requires strengthening and improving collaboration, common governance and data and technology sharing between relevant government agencies, intellectual property rights holders and e-commerce platforms.

There is no doubt that intellectual property law is necessary to ensure fair and ethical respect for digital practices and activities, especially in a diverse and dynamic sector like e-commerce. IPR in e-commerce aids in safeguarding companies that use online platforms. Electronic contracts have become powerful tools for business transformation, delivering benefits in speed, efficiency and cost reduction. They enable parties from different parts of the world to form agreements simultaneously, eliminating geographical barriers. By reducing paperwork and increasing productivity, e-commerce is poised to revolutionize the fields of business, law and technology. However, there is still a significant gap in the implementation of electronic contracts due to the lack of comprehensive legal regulations. Depending upon such pros and cons many young consumers prefer e-contract as it is not time consuming. In a busy day we prefer to not to waste our time on everything, that is why many of them prefer e-contract.

References

For books: – Professor Sreenivasulu NS- Intellectual Property Law- Dynamic Interfaces.

                      Intellectual Property Rights- Rights-Laws and Practice- ICSI

For website article or blog references: This article was originally published on the below website. The link for the same is herein.

• https://blog.ipleaders.in/analyzing-indian-laws-related-to-e-commerce/
• https://www.researchgate.net/publication/330845555_E-commerce_Laws_and_Regulations_in_India_Issues_and_Challenges 
• https://www.legalserviceindia.com/legal/article-6711-online-contracts-legal-issues-and-challenges-confronting-the-indian-scenario.html 
• https://ksandk.com/corporate/understanding-e-contracts-in-indias-digital-economy/ 
• https://amity.edu/UserFiles/aijem/190Laws%20relating%20to%20E%20Commerce%20in%20India%20Issues%20and%20Challenges%201.pdf 
• https://loksabhadocs.nic.in/Refinput/New_Reference_Notes/English/Intellectual%20Property%20Rights%20in%20India.pdf