Modern technology allows you to sign documents or any data or content by putting your signature on a digital device which is known as an electronic signature or e-sign. When applied to data or information that was originally signed by physical handwriting an electronic signature offers the same level of validity. They serve as evidence that the document’s owner has read it and accepts its contents without reservation.
What is Electronic Signature?
Electronic Signature (“ES”) is less secure than Digital Signature (“DS”) but unlike DS as it is primarily used for confirming and not for securing. There are no encryption standards included in ES, which is a secure and legally binding digital version of a “wet ink signature.” When applied to a message or document ES can take the shape of an image, symbol, scanned signature, or method that allows the recipient to confirm their identity and grant their approval. It is typically not approved because no reliable certificate authority or verification service providers provide ES authentication. Comparatively speaking using ES is simpler than using DS. Even if it is less authentic and secure than DS, it is nonetheless enforceable and valid legally. The definition of “Electronic Signature” is under section 2(1)(a) of the IT Act and is an authentication of any electronic document by a subscriber by means of the electronic technique described in the Second Schedule and includes a digital signature.”
Importance of Electronic Signature:
In comparison to getting plaintext, it is more reliable. Digital signatures offer data integrity, message authentication, and message non-repudiation. It helps to provide message authentication and assures that the message is genuine and free of viruses when the user checks the digital signature using a public key that has been provided by the originator.
European Perspective & Laws:
The European Commission outlines three types of electronic signatures: simple, advanced, and qualified, in order of increasing standards for signatory authentication.
- To be considered an advanced electronic signature (AdES), a document must meet certain criteria, including being “uniquely linked to and is capable of identifying the signatory, created in a way that allows the signatory to retain control, and linked to the document in such a way that any subsequent change of data is detectable.
- The strictest requirements must be met in order to create a qualified electronic signature (or QES), which has the highest level of security. These requirements go above and beyond those of an advanced signature by requiring that the QES be “created by a qualified electronic signature creation device and based on a qualified certificate for electronic signatures.” A prospective participant in a clinical trial who has decided to participate in the study after doing their research signs an informed consent form as part of the informed consent procedure. With the use of electronic informed consent or E-Consent, this signature is possible (granted the local regulation and legislation permits its use). Where permitted, participants can apply electronic signatures remotely or on-site, from the comfort of their homes.
Current Legislation
Since July 1, 2016, when it went into full effect and the eSignature Directive of 1999 was repealed, the Regulation (EU) N°910/2014 on electronic identification and trust services for electronic transactions in the internal market, also known as the eIDAS Regulation, has directly applied to the EU Member States. The new regulatory framework provides legal certainty for the international use of electronic signatures, electronic seals, time stamps, electronic delivery services, and website authentication certificates. The eIDAS Regulation’s primary modifications include the following:
- It applies consistently throughout Europe because it is a regulation rather than a directive, therefore there is no need to amend national law.
- laying the groundwork for novel methods of remotely qualified signatures and enhanced user interfaces.
- A harmonization of electronic signatures across all of Europe
- Just because a document is electronic, it nevertheless has the same legal standing as a paper copy.
- Reputable trust services offered across Europe
- The introduction of electronic seals, which are available to legal people, are similar to electronic signatures in terms of technology and provide identification and integrity.
- Time stamping was made available.
- The impact of national Trusted Lists on the constitution
- Certified service for validating certified electronic signatures.
Relevancy of Electronic Signature in the Copyright Transfer in the IT Industry
Contracts that are signed electronically are common practice in the IT industry. However, it is important to keep in mind the legal requirements for signing such contracts while using the choices provided by platform providers for electronic document signing.
One of the regulations governing electronic signatures is European Regulation No. 910/2014 on Electronic Identification and Trust Services for Electronic Transactions in the Internal Market (eiDas), which covers both a fundamental digital signature and an advanced and qualified digital signature. The distinction mentioned above is significant since only the qualified electronic signature, which is an advanced electronic signature offered by a registered provider, confers legal effects similar to a handwritten signature in accordance with the eIDAS standard. The user is given a unique qualified electronic signature that verifies the document’s content is accurate. A certificate that confirms the authenticity of the signature offers a high level of security for the signed contracts. It is especially important that the predetermined specifications for the form of the signed agreement be satisfied when the deal involves the transfer of copyright. An agreement of this nature must be in writing in order to be enforceable, according to the Polish Act on Copyright and Related Rights (which implies a handwritten signature). As a result, certain rights cannot be transferred by simply adding an electronic signature to a contract.
The Parties shall employ a qualified signature issued by a qualified trust service provider as such term is defined in eiDAS. The contract will not have the legal impact of a transfer of copyright if this is not the case. In this situation, the acceptance of a qualified signature in one EU Member state automatically entails acceptance in all other EU nations. This rule also applies to a third country whose trust services are recognized in the EU by another Agreement.
Indian Perspective and existing Laws On Electronic Signature
In India, the usage of electronic signatures in electronic contracts is expanding in part as a result of the Government’s Digital India project, which is focused on developing digital infrastructure and making India into a paperless economy. Additionally, the use of electronic signatures to complete transactions by businesses operating in India is rising.
Laws Related to Electronic Signature:
- Information Technology (Certifying Authorities) Rules, 2000
- Digital Signature (End Entity) Rules, 2015
- Information Technology (Use of Electronic Records and Digital Signature) Rules, 2004.
These rules were framed under India’s Information Technology Act, 2000 (IT Act), which governs the use of electronic and certificate-based digital signatures.
India can cite European methods for establishing electronic signatures to advance their digital transactions, improve user experience, and aid in cross-border legal assurance and guaranteed document integrity.
In our upcoming article, we will be sharing a detailed analysis of the use of electronic signature in the context of copyright transfer from the Indian perspective.
