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Protection of IPR in Cyberspace

The technological headway in the cyber universe and the international markets have aided copyright and patent owners. Nevertheless, every quality innovation has its drawbacks. Cyberlaw and Intellectual property Rights go conjointly and they are not capable of being substituted in contrasting parts thus the subject matter of the online content needs to be secured.

The IPR is concerned with the protection of authentic work in various fields of literature, art, writing, photography, paintings, audio and video files, etc. The above works are protected by IPR in both tangible and intangible forms. IPR includes Trademark, Copyright, Geographical Indication, Industrial Designs, etc. for which various legal remedies are available to the original creator against any such online infringements also called cybercrimes.

Cybercrimes are increasing daily and are not just limited to cyberbullying, cyberstalking, spamming, or phishing but also covers violation of IPR. Every creation in cyberspace is vulnerable to threats. On one hand, cyberspace has simplified e-commerce associating friends and families, disseminating knowledge, and publishing literary works, but simultaneously, these patented works are prone to numerous cyber-attacks.

There is a need to have an efficient IPR management strategy for all the E-commerce businesses that hold considerable space in the cyber world. Various national and international laws are available to safeguard Intellectual property against cyber-attacks. However, the owner of the IP rights is also obliged to take due precautions in this regard to diminish cyber-attack incidents.

Challenges Encountered:
  • The problem of linking:
    Linking means directing an individual user of one webpage to another webpage without leaving the current page. It might influence the user to think that both web pages are linked and are under the same ownership and domain. In the case of Shetland Times Ltd. Vs Jonathan Wills and Anr[1], it was held that the Shetland news deep link was supposed to be within the embedded pages of Shetland's Times website, but they were also links to the Times' website.
  • It is difficult to regulate deep linking as no lucid laws are available at both national and international levels. It provides the upper hand to hackers and cybercriminals to exploit intellectual property[2]. The other challenge concern is In-linking links. It occurs due to the non-availability of any timeframe for the reproduction of copyrighted information. It makes the in-line link creator guilty of copyright infringement.
  • Framing:
    It is another challenge and it becomes a legal subject and a debatable issue over the elucidation and deduction under the Copyrights Act of 1957. The framer only provides a method of operation or a particular way of doing an act to access copyrighted content that is recovered from a website to the current website the user is accessing. In that way, the framer cannot be held liable for any imitation, communication, or dissemination of the copyrighted content. The question is whether retrieving copyrighted content from a website and then merging content with another website will amount to adaptation or copyright infringement under the law.
  • Cybersquatting infringement:
    It is the malpractice of using an internet domain name of someone else in such a manner that the consequent domain name will deceive the users of the eminent one with a mala fide intention to make profits out of the goodwill of the trademark of a trademark of someone else. It is carried out by selling, registering, or trafficking the famed domain name to realize the goodwill of a prominent domain name.

    A trademark refers to a unique identification mark that denotes a specific product or a service. It may include a recognizable insignia, word, phrase, or symbol which represents a specific product or a service and legally differentiates it from all other products of its kind. It recognizes the company's ownership of the brand.

    A trademark dispute arises when two or more people assert their right to register the same domain name irrespective of the fact that the concerned domain name is already an intellectual property of an individual or an organization. Further, all domain name registrars must comply with ICANN's (Internet Corporation for assigned names and numbers) policy.
  • Meta tagging: It is a method or a technique used to increase the number of users accessing a website by adding a word in the keyword section which results in auto-tagging of the words by the search engine thereby directing the users to another site the fact they the users have nothing to do with that site. It results in the infringement of trademarks by adding the meta tags of other websites to a website thereby influencing their business operations. It should also be acknowledged that a domain name is said to be abusive when:
    • It creates suspicion in the mind of the users of being identical to the popular trademark that is a registered one and the users faulty access the fake website made with a malafide intention of gaining profits by distracting the users of the popular trademark domain.
    • The registrant has no legal rights associated with the domain name.
    • The registered domain name is used in bad faith.
  • Software piracy: It refers to an act of illegally copying, using, altering, distributing, selling, or sharing computer software which is protected under the Copyrights Act of 1957.
    • Piracy can be of the following kinds[3]:
    • Software counterfeiting:
      It is related to the production of forced copies of software and then applicating the original software sold at a cheap price in the form of providing the box CDS manuals to the users there was smartly concealing the reality.
    • Soft lifting:
      It refers to an act of buying a soft copy of the software and then downloading it into more than one computer. It involves sharing a program with an unauthorized person without having a valid license agreement to do it.
    • Renting:
      It means renting a copy of the software to someone for a temporary period, without the permission of the copyright holder that violated the license agreement of the software.
There are various international laws, conventions, and treaties for the protection of intellectual property in cyberspace: Madrid Agreement Concerning International Registration of Trademarks(1891), Berne Convention(1886), Hague Agreement, Rome Convention(1961), Patent Cooperation Treaty, TRIPS etc.

Domestic laws include the Copyrights Act 1957, and Information Technology (Intermediaries Guidelines)Rules 2021. Since there is no precise legislation to regulate the accountability of Internet Service Providers ( ISP), Section 51 of the Copyright Act can be interpreted to fall within the scope of facilitation of server facilities of ISP for gathering user data at their business venue which is then telecasted to attain the profits. Nevertheless, this interpretation is possible only when the other ingredients of knowledge and due diligence are fulfilled in a cumulative manner that can hold ISP liable for breach of copyright.

IT( Intermediaries Guidelines) Rules 2021 and Section 79 of IT Act, 2000 provided for conditional protection from the liability of intermediaries, but simultaneously it is open for interpretation under any civil or criminal act. The IT Act, of 2000 makes the intermediary immune from any liability arising from hosting any 3rd party content on its site. The IT Rules 2021 necessitated the adherence of a diligent approach by the intermediaries to avail exemption under section 79 IT Act, 2000.

Jurisdictional Issues about Cybersecurity:
Cyberspace has no boundaries and IP conflicts have become a global concern with various infringements and cross-border disputes. It is a worrying concern whether a legal dispute will come under the jurisdiction of the court or not for adjudication of law. A country can exercise its power to adopt a criminal law to an objectionable act committed outside its borders, but which has an effect within its territory. The courts can also presume universal jurisdiction to prosecute a cybercriminal by following international law.

Various legal theories have evolved and legal concepts developed to deal with jurisdictional issues for violation of IP in cyberspace. The most noteworthy of them is the Zippo test, Minimum Contest Test and The Effect Test. The Zippo test is related to jurisdiction concerning the interaction with business information over the net among non-resident operators. The Minimum Contact Test is used when one or more individuals are out of the court's territorial jurisdiction, yet involve contact with the state. The Effect Test is applied at the territory of the court where the effect or injury of any cybercrime is experienced.

Section 75 IT Act, 2000 also extends to cybercrime committed outside India if the offence is associated with the computer system or network situated in India. The Indian courts can decide on the infringement of IP in cyberspace by safeguarding the IPR of the owners through effective Jurisprudence and Judicial Activism.

Technological developments and innovations must be accompanied by the preservation of conscious data and IPR by resorting to stringent legal measures. Due to the emergence of new types of cybercrimes, it becomes imperative to frame new laws as the traditional laws are adequate to render complete justice.

Further, it is quite difficult to trace the violators of IPR in the cyber world. A secure environment is necessary for smooth sailing and facilitation of global trade and E-commerce and for the protection of IPR. One needs to resort to modern technological practices to shield copyrighted content from leaking like cryptography, digital signatures, encryption, watermarks etc.

The need to refine cyber security has become a pressing job. Some of the cyber security measures include cyber computing, spam filters, Code encryption, increased investments in automation, General Data Protection Regulation (GDPR) compliance, Consideration of Biometric Security etc. It is pertinent to keep a track record of all the work associated with the possession of IPR to recognise the author, number or codes connected with such piece of work.

Taking legal recourse by approaching the court or any lawful authority is not the only lawful solution available to the IP rights holder for the redressal of disputes. It is very much obligatory on the part of the patent, copyright, trademark and various other IPR owners to exercise due caution in safeguarding their works and get updated with contemporary technological measures for the protection of IPR. Thus, all such cybercrimes and social engineering attacks are initiated by individuals within the society and the response to such attacks must come from people only.


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