General

Evaluating Laws for Intellectual Property Rights Protection on the Internet

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This Blog is written by Akshara Lagisetty from Amity University, Mumbai. Edited by Pranoy Singhla.

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INTRODUCTION

Intellectual property rights (IPR) are the rights given to persons over the creations of their minds. They usually give the creator an exclusive right over the use of his/her creation for a certain period of time. As we can see intellectual property is an important asset to any individual or a company.

Intellectual property rights protect various tangible and intangible properties, on internet IPR can protect important information, databases, music, software, programmes which are very vulnerable to be duplicated and pirated employing instantaneous means of replication, publication, and distribution, resulting in significant financial loss to the legal owners.

The internet being one of the biggest invention the man kind had ever made, it has certain drawbacks where an another world is created virtually. In this ever changing and fast pace world and internet has become something which people cannot live without and whole economies shut down lack of it. Where the chances of IPR violations are higher and should protect the owners the same way it does in real life.

The infringement on the internet are a lot harder to find and the nature of anonymity of the internet makes it verry difficult to catch the infringer. But once caught all the person will be punished the same as if they have done the crime in the real world i.e. all the IPR laws which are applicable in real life the same way they are applicable on the internet.

In India each type of Intellectual property has its own laws and acts to protect them and the crimes which happen in the virtual world are delt with an act called IT Act 2000. The Information Technology Act, 2000, in India, which comprises a large section of our Cyber Law, does not have adequate measures for protecting people’ (and organizations’) intellectual property rights and ensuring the deterrence impact of the law in cyberspace.

INTERNATIONAL ORGANISATIONS

The World Intellectual Property Organization (WIPO) is part of the United Nations which was created to promote protection intellectual property. The organization, which was formed by a treaty signed in Stockholm in 1967, commenced activities in 1970 and became a United Nations specialized agency in December 1974. Its headquarters are in Geneva.

The WIPO Copyright Treaty (WCT) is a specific agreement under the Berne Convention that deals with the digital protection of works and the rights of their creators. They are accorded specific economic rights in addition to the rights recognized by the Berne Convention. The Treaty also addresses two copyright-protected subjects: computer programs, regardless of their manner or form of expression; and compilations of data or other material (“databases”). Any member countries, even those not bound by the Berne Convention, is obligated to comply with the substantive terms of the Berne Convention for the Protection of Literary and Artistic Works’ 1971 (Paris) Act (1866). The Treaty went into effect on March 6, 2002. India is a signatory to the Berne Convention but not to the World Intellectual Property Organization’s Copyright Treaty.

The WIPO Performances and Phonograms Treaty (WPPT) addresses the rights of two types of beneficiaries, notably in the digital environment: performers (actors, singers, musicians, etc.); and phonogram manufacturers (persons or legal entities that take the initiative and have the responsibility for the fixation of sounds). India is not yet a party to the treaty, thus it is not legally binding on India.

TRIPS AGREEMENT

The Trade-Related Aspects of Intellectual Property Rights, TRIPS establishes basic criteria for intellectual property rights protection and enforcement in member countries, which are necessary to promote effective and appropriate intellectual property rights protection in order to reduce distortions and obstacles to international commerce. Indian being the member of this agreement, the Indian government has to introduce laws to protect intellectual property. In virtual world the TRIPS framework establishes key rules regulating the protection of digital copyrights. Computer programs, according to Article 10 of the TRIPS Agreement, qualify for protection as literary works under the Berne Convention, and databases are likewise copyright protected.

COPYRIGHTS PROTECTION

The goal of copyright law is to preserve original forms of expression, which includes literary work, music, computer software, and sound recordings, among other types of works. These are easily available on the internet hence the copyright laws are also being used in the virtual world.

Digital technology has made it easy to take material from one site, alter it, or simply reproduce it on another site, posing significant challenges to the conventional understanding of individual rights and protection.

One can infringe a copyright by downloading the work to copy and getting reproduced for commercial use. Caching was also one of the issues of copyrighting but ruled as an exception because of fair use.

A publisher can be anyone who has a PC (Personal Computer) and a modem. A mouse click is all it takes to download, upload, save, transform, or create a derivative work. A web page, like a book, a glossy magazine, or a multimedia CD-ROM, will be eligible for copyright protection since it incorporates text, images, and even audio and video.

Computer Software also comes under the protection of the copyright law under the section-2(ffc) where it states-

“computer programme” means a set of instructions expressed in words, codes, schemes or in any other form, including a machine readable medium, capable of causing a computer to perform a particular task or achieve a particular result;

Section 43, explanation (ii) of the IT Act, 2000 define computer database is as “representation of information, knowledge, facts, concepts or instructions in text, image, audio, video” which are created in a ‘formalized way’ or are generated by a computer and are designed for use in a computer, computer system, or computer network.

Section 51 defines copyright infringement and specifies that a person violates another’s copyright if he unauthorizedly undertakes any conduct that only the copyright holder has exclusive rights to do. Civil remedies for copyright infringements are provided in Chapter XII of the Copyright Act, 1957, which grants injunctions and damages for copyright infringements. Criminal liability provisions are provided in Chapter XII of the Copyright Act, 1957, which makes abetment of infringement illegal and punishable by imprisonment for up to three years and a fine of up to two lakhs. Section 62 of the Copyright Act of 1957 allows a plaintiff to bring a claim for injunction against infringements in the district court of the jurisdiction where the plaintiff resides, conducts business, or works for profit.

Patent protection of the computer software-

In the Patent Amendment Act, 1970, computer software’s which only leads to tangible property which is ‘capable of industrial application’ are protected under this act. Section 2(1) (j) defines invention as ‘a new product or a process involving an inventive step and capable of industrial application’.

TRADEMARK PROTECTION

Trademark Law that grants protection to words and logos which helps in recognition of the source of origin. The helps in advertising the product and creates an image. A trademark law specifies penalty for trademark infringement when a deceptively similar or identical brand is used on comparable or dissimilar products and services that are likely to cause public confusion for affiliation with a registered trade mark.

In the virtual world the trademark has morphed into different forms, one of them is Domain Name is the A website’s name is used to represent an internet protocol address and is a simple method to remember a complicated numerical value. Domain names are therefore readily remembered and frequently coined to represent an organization’s trademark.

Cybersquatting is the unlawful registration and use of Internet domain names that are identical or similar to trademarks, service marks, corporate names, or personal names is referred to as cybersquatting. Cybersquatting registrants purchase and utilize domain names in bad faith with the purpose of profiting from the earned name of the genuine trademark owner.

Meta tags are web page components that are also known as Meta elements. Meta tags include information such as page descriptions, key phrases, and other pertinent data. Metatags are words that are placed into the code of a website so that when a user puts a key term into a search engine, the website has a greater chance of appearing in the search engine results. Critics of metatags and hyperlinks argue that they are likely to cause confusion in the minds of users and infringe on trademarks. The use of metatags frequently results in trademark infringement.

On the internet, a hyperlink may be used to connect one website to another. If a website owner want to build a hyperlink connecting his website to another website by posting a hyperlink on his website, he must first obtain authorization to link.

Legal remedies for actions alleging infringement of a registered trademark or passing off include injunctions, damages or account of profits, delivery up of infringing products, or destruction of infringing goods is covered under Section 135 of the Trade Mark Act of 1999. Section 103 makes applying fraudulent trademarks or trade descriptions a criminal offense, punishable by imprisonment for a time of not less than Rs. 50, 000 and up to Rs. 2,00,000.

Section 104 also stipulates a punishment for selling goods and services with a fraudulent trade mark or description, which is punishable by imprisonment for a time of not less than six months and may extend to three years, as well as a fine of not less than Rs. 50,000 and may increase to Rs. two lakhs. If a mark is unregistered, the owner of the mark has the common law remedy of passing off; but, if his mark is registered, he also has the statutory right to initiate an action for infringement of mark under the Trade Marks Act, 1999.

CONCLUSION

The laws protecting intellectual property are very progressive and keeping with new changes around the globe. These laws are protecting the properties in the real world well but in the virtual world i.e. on the internet still has a lot of scope to improve. The sooner we come up with the laws to improve the conditions in the virtual world the better as the criminals are not help accountable and the crimes are becoming rampant.