Intellectual Property Rights have been put in place to protect original works in the fields of art, literature, photography, writing, paintings etc from being copied and reproduced for profit. Even choreography stored in written format falls under the ambit of intellectual property rights. Intellectual property, by dint of its nature, demands protection in both tangible and intangible forms. Patents, Copyrights, Trademarks, Trade Secrets, Industrial and Layout Designs, and Geographical Indication are some of the forms in which protection has been secured for intellectual property. In this essay, we will examine the legal options available to remedy cyber/online infringement of intellectual property rights.
The massive growth of online production and consumption of intellectual property in recent years has created new challenges for the intellectual property right regime. Newer innovative and subtler forms of theft of intellectual property now exist. Instances of such newer methods as hyperlinking, framing, and meta-tagging have necessitated a revision in the pre-existing approaches to ensuring security for intellectual property.
How do we define intellectual property in Cyberspace?
Intellectual property may be defined as the product of an individual’s intellectual creativity. As the inventor and owner of intellectual property, a person is entitled to certain rights, including the right to profit from it. These rights safeguard the interests of such creative individuals and brain workers as writers, musicians, singers, artists, scientists, and in general people engaged in intellectual and creative professions.
Existing laws in India to protect Intellectual Property Rights:
The government of India has revised its existing laws and passed legislation from time to time to keep pace with the challenges thrown by a fast-changing world. At present the following laws exist to enforce the protection of intellectual property in India:
The Patents (Amendment) Act, 1999
The Trademarks Bill, 1999.
The Copyright (Amendment) Act, 1999.
Geographical Indications of Goods (Registration and
Protection) Bill, 1999.
The Industrial Designs Act, of 1999, replaced the Designs
Act, of 1911.
The Patents (Second Amendment) Act, 1999, for further amending the Patents Act of 1970 in compliance with the TRIPS.
Special challenges presented by cyberspace in protecting intellectual property rights
Copyright Infringement
Copyright protection is given by law to creators of artistic, literary and scientific works. It is meant to protect creators of intellectual property from their products being copied and sold or distributed without permission.
Linking
Income generated by websites is often pegged to the number of clicks on their web pages. Linking refers to directing the intended user of a website to another website by planting a hyperlink in the form of a clickable text or image on it. Redirecting traffic in this manner unjustly robs the target website of its user count and profit. This was deemed to be an infringement of copyright and an injunction was issued in favor of Shetland Times
Techniques such as deep linking are difficult to police due to jurisdictional issues. Regulation is also made difficult by the fact that no clear-cut laws exist at the national and international levels to facilitate the efficient prosecution of cybercriminals.
Modern legal systems have been striving to find a balance between protecting the rights of copyright owners and promoting the free availability of information brought about by the social media revolution.
Section 14 of the Indian Copyright Act, 1957 defines ‘copyright’, whereas section 51 of the act defines the meaning of copyright infringement. Infringement of copyright through the creation of a deep link on a website is difficult to prosecute because de jure, the user clicks on the link of his own will. Moreover, it is difficult to establish the ‘reproduction’ of content, which is an important element in establishing a case of copyright infringement.
Framing is another innovative technique employed by cybercriminals to escape liability. ‘Framers’ confine themselves to providing users with a modus operandi to access copyrighted material; copyrighted material is retrieved from the source and placed on the browser of the user. This prevents the violator from being directly held liable for copyright infringement. In such cases, the crucial question is to establish the point in the course of its illegal transmission at which copyrighted material may be legally deemed to have been copied and distributed, so as leave no loophole to enable the guilty party from escaping liability.
Software Piracy refers to making unlicensed use of commercial computer software protected under the Copyright Act, 1957.
Software piracy may be classified as follows:
Soft lifting- sharing a program with an unauthorized person without procuring a license from the copyright holder.
Software counterfeiting – reproducing fake copies of software without the permission of the copyright holder.
Renting – renting out software to a third party in violation of the license agreement to use.
Cybersquatting and Trademark Infringement-
Section 2 of The Trademark Act, 1999 defines ‘trademark’ as a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include the shape of goods, their packaging and combination of colours.
Cybersquatting refers to the unauthorized use of domain names that are identical, or similar to well-known trademarked brands. This is done with the intent of profiting from the existing goodwill of the target company and duping users into believing that the domain name is linked to or run by an existing well-known brand.
Existing International Laws for the Protection of Intellectual Property in the Cyber World
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)
Uniform Domain Name Dispute Resolution Policy (1999)
Berne Convention (1886) safeguards intellectual property rights in the fields of literary and artistic production.
Rome Convention (1961) provides copyright protection to authors of literary works, as well as owners of indicators of intellectual property.
TRIPS (1994) is a multilateral international agreement regarding the scope and ambit of intellectual property rights.
UDRP (1999) provides a framework for the resolution of disputes pertaining to the registration and use of internet domain names.
Indian Laws Pertaining to the regulation and enforcement of intellectual property rights:
Infringement of Copyright is covered by Section 51 of the Copyright Act. However, there is no express legislation to cover the liability of Internet Service Providers (ISPs). Section 51 lends itself to interpretation in a manner that makes Internet Service Providers liable with respect to the operation of server facilities, provided that the prosecution can establish such necessary ingredients such as ‘knowledge’ and breach of ‘due diligence.
Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 and Section 79 of the Information Technology Act, 2000 afford conditional safeguard from liability for online intermediaries, however, its ambit is open to interpretation, particularly when seen in conjunction with other relevant civil and criminal acts. As per the provision of the Information Technology Act, 2000 an intermediary is not liable for any third-party content hosted on his website, so long as he fulfils due diligence in accordance with the rules laid down by the 2021 Guidelines.
The Question of Jurisdiction
Cyberspace transcends international boundaries. This gives rise to complex problems of overlapping jurisdictions. As a result, the regulation of IPRs in cyberspace has come to be closely tied to the evolution of International Laws. Most cases of violation of the copyright in cyberspace entail culprits spread across international jurisdictions. In response to this challenge, international law has been evolving, so as to allow courts trying cybercrimes to assume a jurisdiction broad enough to run the trial in an efficient manner. Some of the approaches utilized by the US courts to tackle challenges of this nature are ‘the minimum contact test’, ‘the effect test’, and ‘the sliding scale test’ or ‘the zippo test’. These are gradually being adopted by Indian courts as well. The ‘minimum contacts’ test pertains to situations wherein one or both the parties involved are located outside the territorial jurisdiction of the court trying the case, but there is contact with the state within which they are located. The ‘effects test’ comes into play when the place where the violation or injury takes place is located within the jurisdiction of the court. ‘The sliding test’ entails the assertion of jurisdiction by a court over a person implicated solely through his/her internet activities.
Section 75 Information Technology Act, 2000 applies to cybercrimes committed outside India if the offence involves a computer, computer system, or computer network located in India.
Section 4 of the India Penal Code extends the jurisdiction of the code to offences committed at any place outside India targeting a computer resource located in India.
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