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Intellectual Property Rights And Its Influence On Digital Marketing

For years now, marketing in various forms has been used as a strong tool by business owners and marketers to reach the consumers and target audience for their goods and /services. Based on the demand and need, the tools for marketing have varied for both online and offline businesses over a period of time, ranging from TV/radio broadcasts, brochures/pamphlets, billboards/banners to e-mail campaigns and marketing using Social media platforms (including Twitter, Instagram, Facebook, etc). In the current decade, the digital marketplace has grown rapidly.

With the rapid advancement in digital technologies, the current business landscape has seen an exponential growth in the manner and influence of digital marketing. The influence of digital marketing has expanded significantly, especially during and following the recovery period from the COVID-19 pandemic, as businesses have shifted to e-commerce.

This has resulted in an abundance of creative content and a rise in intellectual property issues related to protecting the originality and uniqueness of these creations. Given the increased shift of businesses to e-commerce because of the pandemic effect, there is and would be immense creativity and content creation by using digital marketing as a tool.

Hence, causing a rise in intellectual property issues in terms of protecting the originality and uniqueness of these creations in abundance in present times and on a continual basis, especially times during and following the pandemic recovery period. There has been a long- lasting effect of COVID-19 pandemic on e-commerce. COVID-19 pandemic has had a two- way impact on e-commerce and the changed scenario can be viewed from a dual perspective.

Since the COVID 19 pandemic, Various companies and enterprises across the world have been compelled to operate remotely. There has been a transition from Brick-and-Mortar to e- commerce. This includes adapting to changes such as ecommerce store setup and design, shipping and fulfillment, customer service, and marketing. Pandemic has also changed the online shopping scenario for availing goods and services for the consumers.

Based on a survey titled "COVID-19 and E-commerce, covering various emerging and developed economies across the world, more than half of the surveys' respondents shopped more frequently on online platforms, due to the impact of COVID-19 restrictions worldwide.

Based On The Survey, There Has Been A Massive Shift To Online Shopping.
  1. Legal implications applying to the digital marketing sphere:Digital platforms, including e-commerce websites and social media platforms, have become crucial for businesses, generating a significant portion of their revenues through effective digital marketing tools. Various digital platforms including e-commerce websites and Social media platforms have become the heart of plenty of businesses with a major part of their revenues generated through effective digital marketing tools applied on these platforms.

    Given the endless display of content including expression of ideas in various forms, images, brand names, it is easier to make somebody else's idea as your own and copying their ideas. The line between ownership of original content and its duplication followed by distribution is blurred. With social media's widespread nature of sharing, it is oftentimes hard for intellectual property holders to catch up on any infringements or violations.

    However, when they do, this law is a tool that can be used to stop sharing or halt any violation of copyright, trademark, or patent. The protection of intellectual property affords the holder the right to file complaints, takedown content, seek compensation, file lawsuits, and so much more. If users do not understand how intellectual property rights protection can be lost through social media or how to protect their intangible assets, they may suffer some significant losses. It is therefore advisable to be vigilant in keeping track of any possible violations or infringement.

    It is also best practice to stay up to date with changes in IP laws. This will enable them to protect their rights correctly and, at the same time, contribute to the conversation about intellectual property rights in social media. This has resulted in an unprecedented progress in digitization. As a result of these changes, Digital Marketing has become more important than ever due to the digital transformation and exponential growth of e-commerce industries.

    This sudden boom in digital marketing has prompted businesses to move away from conventional business practises in favour of marketing their goods and services through investment in digital marketing services. Digital Marketing provides plethora of new potential ways for businesses and organisations to boost their online presence and brand recognition.

    This has resulted in an unprecedented progress in digitization. As a result of these changes, Digital Marketing has become more important than ever due to the digital transformation and exponential growth of e-commerce industries. This sudden boom in digital marketing has prompted businesses to move away from conventional business practises in favour of marketing their goods and services through investment in digital marketing services.

    Digital Marketing provides plethora of new potential ways for businesses and organisations to boost their online presence and brand recognition. It is important for users to understand how intellectual property rights can be lost through social media and how to protect their intangible assets. Vigilance in tracking possible violations or infringements and staying up to date with changes in IP laws is advisable.

    By doing so, individuals can protect their rights correctly and contribute to the conversation about intellectual property rights in social media. In general terms, Intellectual Property could be basically related to the fact that certain products or services which are a result of creativity or ingenuity of the individual.

    It also includes rights and protection associated with such property. Intellectual Property may be purchased, sold, shared and licenced by an Intellectual Property Holder to other persons or organisations. These properties are intangible or incorporeal in nature with no association whatsoever with tangible creations.
  2. Importance of IPR in Digital Marketing:
    Intellectual Property Rights (IPR) plays a crucial role in the process of digital marketing. Marketing in the digital landscape entails a variety of approaches, creations, and communications of messages that are critical for enterprises and their clients. This ultimately leads to the creation of intangible properties; or assets that can be protected by Intellectual Property Rights.

    In a marketing campaign, IPR is vital to protect such intangible properties to promote creativity. Until such creations are protected by regulation, entities will not profit from creative ideas and will thus incur high costs or effort to create and explore these ideas. In certain cases, a marketing strategy can go beyond the legal limits imposed by law to protect intellectual property rights in order to outperform rivals. Adhering to the legal requirements of IPR in marketing campaigns is critical in such situations to ensure that communication strategy is not affected. Compliance with the provisions of the law also prevents an enterprise from any legal consequences resulting from an unlawful campaign.

    In a marketing Campaign, for a campaign to be effective as a part of marketing strategy, various logos, designs, product names, slogans, website designs are needed to effectively communicate the Unique Selling Point (USP) of a product or service. Some would consider such resources to be readily available and therefore marketers may use these logos, designs, artworks, slogans, trademarks and phrase to get attention or pique the interests of potential consumers. However, such content may belong exclusively to one individual or organisation under the corresponding intellectual property rights.

    For instance:
    1. A marketer may use a random picture from a Google search for branding or a campaign. However, they should be aware that certain usage rights are associated with images in the digital media, and not all images are "free to use" or have a commercial licence. Before using images, marketers need to verify their usage rights, and if the image is covered by intellectual property rules, they must seek approval or a licence to use it in their campaigns.
    2. Similarly, if marketers use copyrighted material such as songs and videos in their digital campaigns, they must obtain authorization of the content creator depending on how they want to use it. For example, you need to obtain a licence or permission from Sony Music India to use music from any of their label's original artists. Sony Music India is an organisation that represents composers and performers and licences their work.
    3. Furthermore, modifying, editing or altering the content of other creators would not prevent copyright infringements, but may lead to more serious legal issues if the owner of such Intellectual property decides to sue for using or modifying their work without their permission or authorization.
    4. As a result, one might argue that the digital market is basically a market for Intellectual Property, where businesses brand their brands, trademarks, designs, and ideas in order to attract new customers. It depends on the circumstances whether they are protected under intellectual property rights or whether they meet the requirements for protection under IPR. At least in principle, all these assets could be protected. The extent and mode of protection can vary depending on the type of asset in question.
    5. Digital marketing campaigns often incorporate various types of intellectual property rights (IPR) to influence potential customers. These include copyright, trademark, patent, and design, each carrying legal implications that require careful consideration and protection.
  3. Copyright: Copyright grants exclusive legal rights to original creators of digital assets such as designs, photographs, visual artworks, music, recordings, advertisements, and website content. It protects their creations, allowing them to reproduce and share their work while preventing unauthorized copying or reuse. Copyright protection typically extends for the author's lifetime plus 60 years. Registering creative content with the national copyright office is advisable to enforce rights in case of potential infringement.

    Case Study: Ownership of content created by employees or contractors varies in marketing campaigns. Generally, if an employee creates the content during employment, the copyright belongs to the employer. However, when using third-party contractors, copyright ownership remains with the contractor unless an assignment agreement is in place. Marketers should review content to avoid copyright infringement and ensure proper licensing or authorization.

    Remedies: Copyright infringement occurs when someone without authorization violates the exclusive rights reserved for the copyright owner. The Copyright Act, 1957 provides civil and criminal remedies, including injunctions, damages, and orders for seizure and destruction of infringing articles.
  4. Trademark: Trademarks serve as distinctive signs that differentiate products or services from others. They can encompass words, symbols, logos, sounds, or slogans used in advertising. Registering a trademark provides legal protection, typically valid for ten years with the possibility of renewal. Conducting prior searches is recommended before using or registering a trademark to avoid infringement and maintain ethical practices.

    Case Study: In digital campaigns, consistent and appropriate usage of registered trademarks is crucial to maintain their distinctiveness. Marketers are advised to label them with an identification mark to enhance brand distinction and value.

    Remedies: Unauthorized use of an identical or similar mark in unrelated products or services can constitute trademark infringement, potentially damaging the distinctiveness and reputation of the registered mark. Trademark owners have legal remedies available, including combined actions of infringement and passing off.
  5. Patent: Patents protect industrially applicable inventions that are new and non-obvious. In the realm of digital marketing, patent protection can extend to innovative advertising techniques or novel methods of conducting business. In a digital campaign, protections that can be granted under the patent law are subject to industrial applicability and originality of the advancement.

    It is recommended for businesses to file a patent claim on some innovative advertising technology. However, the only conceivable way any business in any marketing campaign could employ patented invention is in the form of software which per se as per patent laws is excluded from patentability under Section 3(k) of the Patent Act.
  6. Design:
    Design protection applies to new and original designs that have not been previously published and do not conflict with public order or morals. Industrial designs encompass aesthetic attributes such as colour, shape, or lines. Creatively and uniquely designed marketable products can receive protection under the Designs Act. Understanding and safeguarding intellectual property rights in digital marketing campaigns is essential for marketers.

    Registering assets, conducting content reviews, employing consistent trademark usage, and seeking appropriate legal remedies help protect and enforce these rights, fostering fair and lawful practices within the digital marketing landscape. However, the ornamental or aesthetics attributes such as colour, shape or lines of an Industrial Designs could be protected. Any artistic concepts that are original in nature and employed in a new manner could be covered under the protection granted under the Designs Act.
  7. Role of effective contracts/agreement/policies in digital marketing with essential focus on IPR:
    Efficient contracts/agreements, /regulations and policies are vital in the ever-changing world of digital marketing, where content generation and distribution are critical components. The protection of intellectual property rights is ensured by a strong legal framework, which promotes innovation and creativity.

    By outlining everyone's rights and obligations and setting clear expectations, these legal documents reduce the likelihood of disagreements and possible intellectual property violations. In the context of the burgeoning digital marketplace, characterized by a surge in creative content, these contracts become instrumental in defining ownership, usage rights, and restrictions pertaining to the intellectual property created or utilized in marketing campaigns.

    Policies governing the use of intellectual property in digital marketing operations act as preventive measures against potential disputes and violations. These policies can include guidelines on obtaining proper licenses for third-party content, listing rights and obligations for all the parties, ensuring compliance with IPR laws and establishing procedures for handling allegations of infringement.
By proactively implementing and enforcing these policies, businesses can create a culture of respect for intellectual property, mitigating legal risks and fostering a conducive environment for creativity. Clear provisions should be included to address ownership rights, licensing terms, and mechanisms for resolving disputes related to intellectual property. Moreover, these legal instruments should align with relevant copyright, trademark, patent, and design laws, ensuring comprehensive protection for the diverse forms of intellectual property utilized in digital marketing campaigns.

As the digital marketplace continues to evolve, businesses must recognize the pivotal role of legally sound contracts, agreements, and policies in preserving the integrity of their intellectual property. By incorporating robust legal frameworks, businesses not only enhance their ability to engage in creative and innovative digital marketing but also fortify their defences against potential intellectual property disputes in this dynamic and rapidly expanding digital era.

In conclusion, the symbiotic relationship between Intellectual Property Rights (IPR) and digital marketing is pivotal in today's business landscape, fuelled by the accelerated shift to e-commerce amidst the COVID-19 pandemic. The surge in creative content and subsequent intellectual property challenges underscore the need for a proactive approach in safeguarding digital creations. Striking a balance between content sharing and protection of originality necessitates a comprehensive understanding of IPR principles.

Businesses as well as individuals must adhere to legal requirements to operate ethically and avoid legal repercussions, emphasizing the importance of IPR in fostering innovation and maintaining a fair digital marketing environment. Crucially, the role of effective contracts, agreements, and policies in digital marketing emerges as a linchpin in this complex ecosystem. These legal instruments provide a structured framework for collaborations, delineating ownership rights, and establishing clear expectations.

Policies governing intellectual property use act as pre-emptive measures, fostering a culture of respect for creativity while mitigating potential legal risks. The synergy between IPR protection and a robust legal infrastructure becomes increasingly important, shaping the future of digital marketing.

This evolution not only influences how businesses engage with consumers but also dictates how they navigate the intricate terrain of intellectual property rights in the Indian context, ultimately defining the trajectory of digital marketing in the years to come.

Award Winning Article Is Written By: Ms.Aarushi Jain(Co-Founding Partner, Chambers of Jain and Kumar)
Awarded certificate of Excellence
Authentication No: MR407928218515-19-0324

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