This blog post has been written by Dr. Apoorva Dixit
INTRODUCTION
The Intellectual Property Rights[1] protect the original work in fields of art, literature, photography, writing, paintings, even choreography in written format, and audio, or video files. The IPR protects these works both in tangible and intangible form. Patent, Copyright, Trademarks, Trade Secrets, Industrial and Layout Designs, Geographical Indications are intellectual property rights for which legal remedies are available even for online infringements.
With the technological advancements and innovations in cyber world the global markets have benefitted the copyright or patent owners. However, every good innovation has its own pitfalls as violation of IPR has become one of the major concerns because of the growth of cyber technology. The IPR and Cyber law go hand in hand and cannot be kept in different compartments and the online content needs to be protected.
The ever-increasing and evolving cybercrimes are not confined to cyberstalking, frauds, cyberbullying, phishing, or spamming but are also infringement of IPR- copyright, trademark, trade secrets of businesses carried online, audios, videos, service marks by illegal practices like hyperlinking, framing, meta-tagging, and many more.
What are Intellectual Property Rights in Cyberspace
IPR can be defined as – “Intellectual property rights are the legal rights that cover the privileges given to individuals who are the owners and inventors of a work and have created something with their intellectual creativity. Individuals related to areas such as literature, music, invention, can be granted such rights, which can then be used in the business practices by them.”[2]
Types of Intellectual Property Rights[3]
Intellectual Property Rights can be further classified into the following categories −
- Copyright
- Patent
- Trade Secrets, to name a few[4]
Every innovation in technological zone becomes prone to threats. The cyberspace on one hand has facilitated e-commerce, connecting with friends and family, publishing the literary works, and sharing knowledge but at the same time these personal data or copyrighted or patented data become vulnerable to various cyber-attacks.
It is best suited to have an effective intellectual property management strategy for all the e-businesses encompassing a considerable number in cyberspace.
There are various laws nationally and internally to safeguard intellectual property against cyber-threats, but it becomes the moral duty of the owner of IPRs to take all the required protective measures to negate and reduce illegitimate virtual attacks.
Intellectual Property Rights in India
For the protection, the IPRs in Indian soil, various constitutional, administrative, and judicial rules have been defined whether it is copyright, patent, trademark, or other IPRs.
Legislations Enacted to Protect IPR[5]
In the year 1999, the government passed an important legislation based on international practices to safeguard the intellectual property rights. The same are described below−
- The Patents (Amendment) Act, 1999, facilitates the establishment of the mailbox system for filing patents. It offers exclusive marketing rights for a time of five years.
- The Trademarks Bill, 1999.
- The Copyright (Amendment) Act, 1999.
- Geographical Indications of Goods (Registration and Protection) Bill, 1999.
- The Industrial Designs Bill, 1999, replaced the Designs Act, 1911.
- The Patents (Second Amendment) Bill, 1999, for further amending the Patents Act of 1970 in compliance with the TRIPS.
Learn more about the IP regime in India with Enhelion’s Diploma in Intellectual Property: Law and Management.
CHALLENGES FACED IN PROTECTION OF IPR IN CYBER LAW
A. Copyright Infringement:[6]
“Copyright protection is given to the owner of any published artistic, literary, dramatic, or scientific work over his work to exclude everyone else from using that work on his own name and thereby gain profit from it.”
The infringement of these copyrights includes the usage without the permission of the owner, making and distributing copies of software and unauthorized sale of the same, and illegitimate copying from websites or blogs.
- Linking:
Linking refers to directing a user of a website to another webpage by action of clicking on a text or image without leaving the current page. It poses a threat to rights and interests of the owner of the website and the owner can lose the income as it related to the number of users visiting the websites. It may lead users to believe that the two websites are linked and are under same domain and ownership.
In Shetland Times, Ltd. v. Jonathan Wills and Another[7], it was held to be an act of copyright infringement under British law and an injunction was issued as the Shetland News’s deep link was supposed to be with the embedded pages of the Shetland Times’s web site, but they were also linked to the Times’ website.
With digitisation there is a threat to copyright ownership and rights over their own innovation as it has become easy to mould various components of copyright elements into variety of forms by the process of linking, in-linking, and framing. This requires no permissions to be accorded.
Deep linking is challenging to manage as there are no clear-cut laws at both national and international level and this ambiguity becomes advantageous for cybercriminals who try to breach the copyrights. The rights of the owner of copyrights on one hand and free availability of information on another is needed to be balanced to ensure smooth working of online resources and businesses. Reading Sections 14 and 51, Indian Copyright Act, 1957, a legal issue emerges whereby it is not clear as to the exact stage when the reproduction of the copyrighted work is being committed[8]. The ambiguity lies in tracing the copyright infringement that is it at the stage of formation of deep link without the disclaimer of accessing a link which needs no approval or at the time when a user accesses the link at his will.
Another challenge is with the in-linking links. On a browser visited by a user accessing the link is created with map to navigate and fetch images from various sources, these images are copied by final user who is clueless that he is retrieving those from different websites. Like deep linking, the problem of tracing the infringement remains the same as it is difficult to track the exact phase of reproduction of the copyrighted images. The in-line link creator is guilty of copyright infringement though not directly distributing it but giving way to facilitate making of unauthorized copies of the original website content thereby falling under the purview of Section 14 Copyright Act, 1957. However, the final user has no mens rea or knowledge of any violation of copyright and is thus caught off-guard.
- Framing:
Framing is another challenge and becomes a legal issue and debate subject over the interpretation of derivation and adaptation under Section 14 Copyrights Act, 1957. The framer only provides users the modus operandi to access copyrighted content which is retrieved from a website to browser the user is accessing so they cannot be held responsible for copying, communicating, or distributing the copyrighted content. The question arises whether getting the copyrighted content from a website and combining with some more to create one’s own will amount to adaptation or interpretation under law or not.
B. Software Piracy:
Software piracy refers to making unauthorized copies of computer software which are protected under the Copyright Act, 1957.
Piracy can be of following types:[9]
- Soft lifting – this means that sharing a program with an unauthorized person without a licence agreement to use it.
- Software Counterfeiting – Counterfeiting means producing fake copies of a software, imitating the original and is priced less than the original software. This involves providing the box, CDs, and manuals, all tailored to look as close to original as possible.
- Renting – it involves someone renting a copy of software for temporary use, without the permission of the copyright holder which violates the license agreement of software.
C. Cybersquatting And Trademark Infringement:
Trademark means a unique identifier mark which can be represented by a graph and main idea is to differentiate the goods or services of one person from those of others and may include shape of goods, their packaging and combination of colours.
Cybersquatting is a cybercrime which involves imitation of a domain name in such a manner that the resultant domain name can dupe the users of the famous one with an intention to make profit out of that. This is executed by registering, selling, or trafficking of a famous domain name to encash a popular domain name’s goodwill.
When two or more people claim over the right to register the same domain name then the domain name dispute arises when a trademark already registered is registered by another individual or organization who is not the owner of trademark that is registered. All domain name registrars must follow the ICANN‘s[10] policy.
Meta tagging is a technique to increase the number of users accessing a site by including a word in the keyword section so that the search engine picks up the word and direct the users to the site despite the site having nothing to do with that word. This may result in trademark infringement when a website contains meta tags of other websites thereby affecting their business.
There are certain conditions which need to be fulfilled for a domain name to be abusive:
- The domain name can be said to be abusive if it gives the impression to the users of being same as another popular trademark which is a registered one and users mistakenly access the fake one made with mal intention of gaining profit by diverting users of popular trademark domain.
- The registrant has no legal rights or interests in the domain name.
- The registered domain name is being used in bad faith.
Learn more about the cyber law regime in India with Enhelion’s Diploma in Cyber Laws.
INTERNATIONAL LAWS FOR PROTECTION OF IP IN CYBER WORLD
The various international conventions treaties and agreements for protection of intellectual property in cyberspace are : “Berne Convention (1886), Madrid Agreement Concerning the International Registration of Trademarks (1891), Hague Agreement Concerning the Registration of International Designs (1925), Rome Convention for Protection of Performers, Producers of Phonograms and Broadcasting Organizations (1961), Patent Cooperation Treaty (1970) Agreement on the Trade-Related Aspects of Intellectual Property Rights (1994), World Intellectual Property Organization Copyright Treaty (1996), World Intellectual Property Organization Performances and Phonograms Treaty (1996), and Uniform Domain Name Dispute Resolution Policy (1999), in consolidation form the international instruments that govern Intellectual Property Rights.”[11]
Berne Convention (1886) protects the IPRs in Literary and Artistic Works and for the developing countries specialised provisions are provided.
Rome Convention (1961) covers creative works of authors and owners of physical indicators of intellectual property. It permits the implementation at domestic level by member countries where the dispute falls within purview of adjudication by International Court of Justice unless resorted to arbitration.
TRIPS (1994) is a multilateral agreement on intellectual property that has the widest coverage of IPRs like copyrights and related rights.
UDRP (1999) is for the resolution of disputes on registration and use of internet domain names.
Learn more about the IP regime in India with Enhelion’s Diploma in Intellectual Property: Law and Management.
INDIAN LAWS ON IPR
Section 51 of Copyrights Act, 1957 is noticeably clear that exclusive rights are vested in the copyright owner and anything to the contrary constitutes copyright infringement thereof[12]. Since there is no express legislation to determine the liability of Internet Service Provider (ISP), Section 51 can be interpreted to fall within the ambit with respect to the facilitation of server facilities By ISPs for stockpiling user data at their business locations and which is broadcasted for making profit through charging for services and advertisements. However, to interpret in such a way the other ingredients are to be fulfilled in a cumulative manner, these ingredients are ‘knowledge’ and ‘due diligence’ to hold ISP liable in abetment of infringement of copyright.
Information Technology (Intermediaries Guidelines) Rules 2021 and Section 79 IT Act, 2000 provide conditional safeguard from liability of the online intermediaries, but at the same time its open for interpretation under any other civil or criminal Act. IT Act 2000 makes an intermediary non-liable for any third-party content hosted on its site. The 2021 Guidelines entail following of diligent approach by the intermediaries to avail protection or exemption under Section 79 IT Act, 2000. Therefore, it becomes crucial for initiative-taking judicial interpretation depending on the facts of each case.
JURISDICTIONAL ISSUES IN IP CASES IN CYBER LAW
Cyberspace has no borders and Intellectual Property disputes have become a global concern with mixed infringements and cross border disputes. For prescription, adjudication, and enforcement of law the legal disputes will come under jurisdiction of a Court or not becomes a worrying concern as there is no clear-cut rule of law. A country as a sovereign power has powers to adopt a criminal law for to an offensive act was committed outside its borders may but which has an impact within its territory. Following the international law, Courts can assume universal jurisdiction to prosecute a cybercriminal.
Evolution of various of theories and legal concepts has been witnessed to deal with this much anxiety of jurisdictional issues with respect to adjudicating the infringements of intellectual property in cyberspace. The most significant of these are the Minimum Contacts Test, the Effects Test, and the Sliding Scale Test or ‘Zippo Test’ taken from US Courts. The Minimum contacts test is applicable where one or both parties are out of territorial jurisdiction of the Court but there is a contact with the State in which the Court is located. The Effects test is applicable at the territory of the Court the effects or injury of any cyber-crime is experienced. The Sliding Test is related to personal jurisdiction regarding the interactions with commercial information over the internet between the non-resident operators.
Section 75 IT Act, 2000 is applicable to cybercrimes committed outside India if the offence involving a computer, computer system, or computer network placed in India. Section 4 IPC, 1860 extends its jurisdiction to offences committed in any place outside India targeting a computer resource located in India. The courts in India can adjudicate against the intellectual property infringements in cyberspace and they protect the intellectual property owners by means of judicial activism and effective jurisprudence.
Learn more about the cyber law regime in India with Enhelion’s Diploma in Cyber Laws.
CONCLUSION
Along with the technological advancements and innovations it becomes imperative to protect the sensitive data and information and the intellectual property online by resorting to stricter legal measures. As newer types of cybercrimes affecting intellectual property are cropping up, so it becomes essential to enact new laws as traditional regulations are not sufficient to render justice as the challenges faced in protection or tracing the infringers of intellectual property in cyber world is quite challenging.
For smooth sail and facilitation of global trade and e-commerce and various businesses conducted online the import and export are necessarily provided a secured atmosphere to protect IPRs. Novice and updated technological practices to protect copyrighted content is absolute necessity like encryption, cryptography, digital signatures, and digital watermarks. It is important to keep a record of all the work with ownership of IPRs to identify the author, numbers or codes involved with such works. Taking the route of legal redressal of dispute is not the only solution but it is very much required on part of copyright, patent, trademark, and various other intellectual property rights owners to be initiative-taking and take all necessary precautions in protecting their works and be updated with the current technological measures of protection for IPRs. Social engineering attacks are generated or started by people, and the answers and solutions to these problems would come from people only.
[1] Hereinafter referred to as IPR
[2] Tutorialspoint.com. 2022. Intellectual Property Right. [online] Available at: <https://www.tutorialspoint.com/information_security_cyber_law/intellectual_property_right.htm> [Accessed 14 June 2022].
[3] Ibid
[4] Ibid
[5] Ibid
[6] Legalserviceindia.com. 2022. Intellectual Property Issues in Cyberspace. [online] Available at: <https://www.legalserviceindia.com/legal/article-3233-intellectual-property-issues-in-cyberspace.html> [Accessed 14 June 2022].
[7] Shetland Times Ltd. v. Dr. Jonathan Wills and Zetnews Ltd. [1996] (Court of Session, Edinburgh).
[8] Banerjee, S., 2021. Intellectual property rights law in cyberspace. [Blog] https://blog.ipleaders.in/, Available at: <https://blog.ipleaders.in/intellectual-property-rights-law-in-cyberspace/> [Accessed 15 June 2022].
[9] Legalserviceindia.com. 2022. Intellectual Property Issues in Cyberspace. [online] Available at: <https://www.legalserviceindia.com/legal/article-3233-intellectual-property-issues-in-cyberspace.html> [Accessed 14 June 2022].
[10] ICANN (Internet Corporation for Assigned Names and Numbers) is the private, non-government, non-profit corporation with responsibility for Internet Protocol (IP) address space allocation, protocol parameter assignment, domain name system (DNS) management and root server system management functions. The Internet Assigned Numbers Authority (IANA) previously performed these services.
[11] Banerjee, S., 2021. Intellectual property rights law in cyberspace. [Blog] https://blog.ipleaders.in/, Available at: <https://blog.ipleaders.in/intellectual-property-rights-law-in-cyberspace/> [Accessed 15 June 2022].
[12] Ibid