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Intellectual Property Issues In Cyberspace

The advancement in e-commerce and e-business has led to an important concern to the companies and organisations to protect their intellectual property rights online. Nowadays, cyber crimes do not only confine itself to fraud, cyber bullying, identity thefts but also infringement of copyrights and trademarks of various business and other organisations.

Intellectual Property Rights (IPR) and Cyber Laws cannot be separated, and online content must be protected.

Cyberspace is the non-physical domain over which the communication between computers takes place through computer networks. With the growth of technology every individual has a right of accessing cyberspace and sharing information.

In cyberspace, sometimes private information is shared by a person who is not the owner. Hence, privacy is violated. One makes profit from another person's creation. Those rights are protected under IPR.

Patent, Copyright, Trademarks, Trade Secrets, Industrial and Layout Designs, Geographical Indications etc. are intellectual property rights. When these rights are violated in cyberspace there are various remedies in law.

Copyright Infringement:

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.

When these copyrights are used by anybody without the permission of the owner, it amounts to infringement of such copyright. When copies are made of software which are distributed on the internet and sold by any person other than owner, it amounts to copyright infringement. Copying from website or content from the blog also amounts to a copyright violation.

Copyright Issues In Cyber Space:

  1. Linking:

    It allows the user of the website to go to another website on the Internet without leaving that website that he is uses. It is done by clicking on a word or image in one web page. Linking damages the rights or interests of the owner of the webpage.
    • Linked sites can lose their income as revenues are often equal to the number of persons who visit their page
    • It may create the impression that the two linked sites endorse the same and are linked to each other.
    In Shetland Times, Ltd. v. Jonathan Wills and Another, the Shetland News's deep link to embedded pages of the Shetland Times's web site, through the use of Times' web site's news headlines, was held to be an act of copyright infringement under British law and an injunction was issued for the same.
  2. Software Piracy:

    It is also covered under Indian Copyright Act . This is knowingly making use on a computer of an infringing copy of a computer programme.

    Piracy can be of 3 types:
    1. Soft lifting
    2. Software Counterfeiting
    3. Uploading-Downloading.

  3. Cybersquatting And Trademark Infringement:

    Trademark means a mark capable of being represented graphically and which can distinguish 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 done when domain names are registered, sold or trafficked-in with the intention to make profit from the goodwill of someone else. It is a punishable.

Trademark Issues In Cyber Space

A domain name dispute arises when more than one individual believe that they have the right to register a specific domain name. It arises when a registered trademark 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 policy . Cybersquatting is a type of domain name dispute.
Yahoo! Inc v. Akash Arora & Anr , the defendants were using yahooindia.com for providing internet services.

The petitioner was the owner of the trademark Yahoo! and had registered its domain name with different countries like yahoo.in for India. Hence, the domain name yahooindia.com could be mistaken as an extension of Yahoo!. The Court treated the matter as passing off and granted an injunction restraining the defendant from using the domain name yahooindia.com.

Meta tagging is a technique in which a word is inserted in the keywords field of the site to increase the chances of a search engine returning the site, even though the site may have nothing to do with the word which was inserted. Infringement of trademark occurs when companies include their own websites meta tags containing the names or descriptions of other companies.

Oppedahl & Larson v. Advanced Concepts, the law firm of Oppedahl & Larson, owner of the domain name , filed a trademark infringement action against three companies and the corresponding ISPs after discovering that the companies inserted the words Oppedahl and Larson in the keywords field of their web pages in order to draw traffic to their sites.
The UDRP Administrative Procedure is only available for disputes related to abusive registration of a domain name. For a domain name registration to be abusive, certain conditions are needed to be fulfilled.

The conditions are:

  • The domain name registered by the domain name registrant is identical or confusingly like a trademark or service mark in which the complainant (the person or entity bringing the complaint) has rights; and
  • the domain name registrant has no rights or legitimate interests in respect of the domain name in question; and
  • the registered domain name is being used in bad faith.


Conclusion
Cyber space is becoming a core area for intellectual property rights infringement. Various practices by the cyber site operators resulted in violation of intellectual property rights and various other rights of other websites operators. It has become crucial that people are aware of the unlawful usage of their websites and webpages.

With the growth of Cyber space and technology advancements, copyright and trademarks are not limited to the conventional intellectual property alone but has extended to intellectual property rights over the internet.

There are various rules and guidelines provided by international conventions and treaties to protect infringement of IPRs online which are helping e-commerce and e-businesses to expand. The Information technology Act does not provide provisions in respect of jurisdiction issues, cybercrimes related to IPR, cyber stalking, cyber defamation etc.

The Indian Trademark Act, 1999 and Copyright Act, 1957 are also silent on issues on online Trademark and Copyright infringement. Though computer programmes are protected under the Copyright Act, 1957, it does not provide remedies for cyber piracy.

References

  • Manupatra Bharati Law Review, April June 2016
  • www.mondaq.com/india/copyright/655852/copyright-law-in-india-everything-you-must-know
  • 1997 F.S.R. (Ct. Sess. O.H.), 24 October 1996
  • SEC 63B Copyrights Act
  • Section 2 (ZB) of the TradeMarks Act, 1999
  • Uniform Domain-Name Dispute-Resolution Policy (UDRP)
  • 1999 IIAD Delhi 229
  • D. Colo. Feb. 6, 1998
  • Paragraph 4(a) of the UDRP Policy

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