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Infringement Of Intellectual Property Rights In Cyber Space With Reference To Indian Scenario

We see many technologies or art facts in our day to day lives that are essentially the product of the mind/intellect and therefore warrant legal protection as any other property. Intellectual property (IP) is explicitly described as creations of human mind.. It is an intangible property, as opposed to both public and private property.

In general Terms, Intellectual Property Rights (IPRs) are legal rights that covers the privileges granted to people who are the creators and inventors of a work and have developed something through their intellectual creativity.[1] At its conception, the aim of intellectual property law was to ensure that there were enough incentives in place to encourage creativity and the production of innovative and exclusive works.

Patents, Trademarks, Geographical Indications, Copyrights, and Trade Secrets are important tools of protection under IPR regime. To claim protection under the present intellectual property regime, the creator must demonstrate conclusively that the creation is his or hers and that they did not steal the idea from anyone else or copy their creation from an existing piece of intellectual property.[2]

However, with the dawn of the internet, copying has become so easy and convenient that widespread intellectual property Rights infringement is occurring, jeopardizing the interests of IPR owners. Internet has emerged itself into a data and research access tool, expanding the reach of the user to true global information access. A lot of information and data can be transferred by one click, from one computer to another. Copyright and trademark infringement on the internet is popular nowadays, and this involves linking and framing, uploading and downloading of copyright material, and domain name disputes such as cyber squatting, cyber parasites and reverse domain name hijacking.

Introduction
Cyberspace can be defined as a virtual computer world, and more specifically, an electronic medium that is used to facilitate online communication.Ł
The exponential growth in smart phone and internet use has encouraged ecommerce business in both urban and rural areas, and cyberspace has thus become more essential for conducting business.

A good number of small scale enterprises are operating their businesses through the help of internet. Although technological advancements have benefited the commerce sector and boosted sales, they have also raised a slew of intellectual property issues. The primary reason for this is the issue of jurisdiction in the virtual world. Computer technologies did not exist during the inception of the Intellectual Property laws. At that time, neither the importance of safeguarding digitally stored information nor the possibility that information would become such a sought after and valuable commodity was foreseen..

There are couple of reasons starting from the ease with which digitally available works can be copied, the convenience with which such works can be transferred from one computer to another and how easily such works can be altered or modified which will all again prove that the existing intellectual property law will face difficulty in regulating the protection of works in digital world.

In India it is Patents act 1970, Indian copyrights act 1957 and Trade marks act 1999 that deals with the issues in the domain of intellectual property rights.[4] Although the above provisions are quite effective while dealing with the IPR issues in the physical world but its jurisdiction is lagging behind in the field of cyberspace.

With the advent of emerging technologies, history shows that the Copyright law is the one that is most influenced. Advances in printing and telecommunication technology have facilitated the reuse, dissemination, and use of copyrighted content for the benefit of humanity, but they have also created a slew of issues for copyright holders. The issue with trademarks on the Internet is finding out if they have been used or not.

We can place a label on a product or a sign on a building in the "real" world, but in the online world, trademark usage can be as short as a momentary appearance on a computer screen. Through this research paper I would be dealing with the issues relating to IPR in cyber space with specific reference to Jurisdiction of Indian laws in Cyberspace.

Statement of problem
In today's society, using the internet has become a need. There isn't a single industry that doesn't gain from the internet or whose job would be possible without it. The only distinction is that certain industries, such as the stock market and video content creators, Gaming programmers,etc. are completely reliant on the internet and conduct their business entirely online while others take the benefit of internet only to boost their productivity, increase sell, expand their reach.

With the increasing usage of internet, certain issues have said to be arisen in the intellectual property rights regime starting from copyright infringement, Trademark infringement, etc. The most prevalent copyright violation in cyberspace is the copying and distribution of songs, videos, and games without the authorization of the copyright owner. Trademark infringement usually occurs when there is a domain name dispute starting from cyber squatting, cyber parasite, reverse domain hijacking, etc. Besides the IPR related issues in cyber space another problem is the controversies surrounding IPR, which the infringers take advantage off.

There is still a dilemma as to whether a computer program and Business methods as well should be patented or not. While some countries like Us and Japan have already started patenting computer programs and business methods but other countries like India are yet to take a step. In India Computer software are basically protected under copyrights act, 1957. Many analysts have given their opinion in favor of patenting computer programs.

As per them if the computer programs are not patented then It will become convenient for a person to create a new software by only altering the expression part of the existing software.

Research Objective
  1. To critically analyze the issues relating to Intellectual Property Rights in Cyberspace.
  2. To explore the Jurisdiction of Indian Laws in Cyberspace during Intellectual Property Rights Infringement.
  3. Recommending ways to improve India's Intellectual Property Rights Regime, which would again benefit IPR owners.

Research Question
  1. What are the issues relating to Intellectual Property Rights In Cyberspace
  2. Is Computer Programs/Software protected under Patent Act,1970?
  3. What is Linking and Framing and How it leads to copyright infringement?
  4. What are the Domain Name Disputes and How It leads to Trade Mark infringement?

Copyright Infringement In Cyberspace
Authors of original novel, dramatic, theatrical, and artistic works, as well as computer programmers, are granted different privileges under Section 14 of the Indian Copyright Act of 1957. They have the exclusive right to reproduce, render copies, execute or present their work in public, translate and modify their work, and so on.

The concept behind Copyright law was to reward authors and innovators by giving them monopoly rights to commercially use their creations for a set period of time in exchange for the work being made available to public. The copyright law seeks to strike a balance between copyright owners' interests and the public's freedom to obtain and use artistic works.[5]

However with the unfolding of Digital technologies in the 20th century, it seems as if the copyright laws are proving to be ineffective especially in the cyberspace. This is simply because how easy it has become to copy and distribute the copyrighted works in the digital world. Some of the well known issues relating to copyrights in the field of cyberspace is as follows :

Software Piracy
Software piracy is the unlawful downloading, installation, copying, distribution, modification, or sale of software that is protected by law. As per section 101 of US copyright law, A computer software is a set of statements or instructions that can be used explicitly or implicitly in a computer to achieve a certain outcomeŁ.[6] This means that the computer software is a set of instruction that causes a machine/computer to perform certain functions. It has been long established by the parliament that software deserves protection under copyright regime however it's still a debatable issue as to whether it should be protected under patent rights or copyrights.

In the case of Sega Enterprises Ltd V Richards[7], Sega, the creator of the Frogger videogame, alleged that the computer software that regulated the game's play was infringed upon. The Defendant also admitted that the software so developed by him was based upon the frogger machine code program but as per him it cannot be considered as a copyright infringement.

The court held that going by the terms of the Copyright Act pertaining to Literary Works, Copyright does exist in the assembly program code of a computer game and that the machine code so extracted was either copying or modification of copyrighted work and hence the defendant is liable for copyright infringementŁ.

In India it was basically in 1994 that an amendment was made to the copyright act of 1957 and section 2(o) was added to it, that recognized computer programs under copyrights protection.

Linking And Framing
In Linking, User of a website can have access to another website by simply clicking on a 'Image' or a 'word' in the same webpage. At the same time this process may infringe the rights of the owner of the webpage that is being linked.[8] Linking is generally dealt under copyright regime. Consider the case where X creates a home page for her website. She places some ads on the webpage in the hope of making some profits. The homepage also includes links to different subordinate pages that contain material that X thinks customers will find interesting.

After that, Y builds his own Web site which contained links to X's subordinate sites. As a result, users to Y site will be able to browse X's content without ever seeing X's ads, which are now shown on the Home page (Deep linking). This will cause a loss to the X and if X has made a contract with other firms whereby those firms agreed to make payments for linking to the X's subsidiary sites.

Then the consequence is that Free linking by Y to X's site will certainly disparage such contractual relationship. In the case of Ticket master corporation V. Microsoft corporation, Microsoft corp. was sued by Ticket master Corp., for linking to the subordinate pages of Ticket Maters corp.'s website without taking any permission.

This very well resulted in diversion of advertisement revenues that Ticket master could have earned if Microsoft corp. has linked to the home page. Ticket master had also made a contract with other firms whereby those firms had to make payments for linking, thus disparaging their contractual relationship. It was held that allowing such free linking by Microsoft corp. undermines the ticket masters marketing efforts and hence Microsoft is liable for copyright infringement.

In Framing, the web designer splits the web browser window into many distinct sections. It is basically one of several ways to construct a web page. It is the web designer who has to dictate what should be displayed in each frame. This kind of practices may result in copyrights infringement. A Web site that uses frames, for example, would often display the original Web site's graphic logo at the top of the page while allowing the user to see the other Web site in a separate frame.

In the case of Total News Inc. v. Washington Post Corporation[9], Total News maintained a website that provided access to the websites of several news outlets, including the Washington Post, Time Cable News Network (CNN), Times Mirror, Dow Jones, and Reuters. The websites of these news providers were shown in the Total News frame by clicking on the links. Total News' logo and Total News URL was also displayed in the same frame. The plaintiffs filed a copyright infringement lawsuit against the defendant and were successful.

Digital Music And Its Copyright Infringement In Cyberspace
MP3, an audio compression file format, is the technology that has made music distribution over the internet easy and convenient. Mp3 files covers less space as compared to several uncompressed files and hence they can be transmitted and stored easily. This kind of technology is quite beneficial for the singers who are unable to obtain a contract from the major recording companies. At a very lower cost they can record their voice in mp3 format and distribute it over internet but the lacunae is that a number of copies can be derived from such mp3 file without the permission of the owner leading to copyright infringement.[10]

P2P File sharing
Peer-to-peer file sharing is an Internet-based technology that enables computer users to share files from one another. It is basically a way of sharing files without any server. It is quite different from a server-based delivery system, where users connect to a website (such as a web server through their web browser) to transfer files. Each computer in this case acts as a server and receiver. P2P users save files on their servers, and the P2P program allows other P2P users to copy those files. Bit Torrent is an example of a peer-to-peer program.. To transfer files via P2P, users usually need a client a software program installed on their device. Kazaa, Limewire, BearShare, are examples of such clients. Peer-to-peer file sharing is often used to exchange copyrighted works, where those sharing the works do not have the right to share.

Trademark Infringement In Cyberspace
A Trademark is basically a distinctive sign which identifies the goods and services of one company from those of another.[11] It helps a manufacturer in distinguishing his/her product from that of his competitor.

It also helps the consumers in identifying the product/service based on their reputation and quality. In order to expand the popularity of the mark amongst the consumers and to gain monetary benefits the owner of the trademark sometimes authorize a third party to exploit the mark in the course of trade, under trademark licensing agreement.[12] Rights of the trademark owner is very well dealt under Trade Marks Act, 1999.

The issue with trademarks on the Internet is determining whether or not they have been used. We can place a label on a product or a sign on a building in the "real" world, but in the online world, trademark usage can be as short as a momentary appearance on a computer screen.

Some of the well Known issues relating to Trademarks in the field of cyberspace is as follows:
Disputes Relating To Domain Name And Cyber squatting
A domain name is basically the address through which internet users can access an entities website. Its purpose is to locate a webpage on the internet. It is quite important to note that every webpage has its unique address just as every telephone number has a unique number. So, if a person wants to access an entities website then he/she has to enter the address of that particular entities website.

For Ex- Www.Codesdaddy.com. There are basically 2 types of domain names starting from generic top level domain which are used by a particular class of organization (.com for commercial organization,.int for international organization) and Country code top level domain which are basically designated for a particular country (.uk for United Kingdom,.eu for European union). A domain name may be closely associated to or act as a trademark so it may reflect identity, quality, and content of the website.

cyber squatting is a term that is used to describe an individual or a company who intentionally purchases a domain name and holds it until they can sell it at a premium price.[13] Suppose there is an business entity (Bata) which would prefer its own trademark to be used as its domain name(www.bata.com) since people very well recognize the trademark and consumer moreover always relate such domain names with the brands. So, it is quite important for the business entities to register its domain names that correspond to its Trademark. It is quite important to note that the domain name registration is based on the first cum and first serve basis. This means that anyone can approach a domain name registrar and register with the available domain name. So, If a company(Bata) has not registered its domain name then anyone else could just register the domain name in his favor.This is called as cyber squatting. So, basically the cyber squatters, register a domain name that corresponds to the trademark of a particular entity before the entity could possibly register and they try to sell the domain name to that particular entity at a premium price.

In the case of Yahoo ltd V. Akash Arora[14], The Delhi High Court upheld Yahoo's worldwide reputation and barred Arora from using the domain name "Yahooindia.com." Similarly in the case of Rediff communication V. Cyber Booth, the Mumbai High Court held that A domain name is a precious business asset that must be safeguarded. In India we don't have any specific legislation dealing with domain name and cyber squatting but the definition of 'mark' and 'Trade mark' incorporated under section 2(1) (m) and 2(1) (z) of the Trademark act, 1999 are wide enough to cover the domain name issues.

Reverse Domain Name Hijacking
Reverse cyber squatting is another name for it. It occurs When a trademark owner tries to secure a domain name by filing a bogus cyber squatting lawsuit against the legitimate owner of the domain name. This sometimes overawe domain name owners into selling ownership of their domain names to trademark owners in order to escape legal action, particularly when the domain name belongs to a small business or person. Larger companies and well-known individuals prefer it.[15]

Cyber Parasite
Cyber parasites, like cyber squatters, plan to benefit financially; but, unlike squatters, they expect to profit from the use of the domain name. In some cases the domain name corresponding to Trademark of a famous entity will be registered by a third party beforehand for his own use and In other cases a domain name that is similar to or a commonly mistyped version of a famous domain name is used by the third party to earn profit from the reputation of the brand.

In the case of Rediff communication ltd V. Cyber tooth[16], The plaintiff had brought a complaint of selling off against the defendant, who had used the domain name rediff.com as part of their business model, which was allegedly deceptively similar to the plaintiff's domain name, reddiff.com.

The court observed that Both the plaintiff and the defendant were indulged in similar line of activities and that both of them were operating in online mode. Accordingly, It held that the defendant used a domain name similar to that of Plaintiff with main motive of taking the advantage of the reputation being earned by Rediff communication Ltd and hence was prohibited from using the similar kind of domain name.

Patent Infringement In Cyberpsace
Patent is one form of intellectual property right that gives an individual the legal right to protect his invention from making, using or selling by others without his permission. The state grants patent right to a person only if such invention is for a useful purpose, is original and not copied from any other individual or entity, is non-obvious i.e. the invention is not known and cannot be anticipated by a person working in the same industry.[17]

A patent licensing agreement usually gives a person exclusive rights to manufacture, market, and use a patented invention under certain conditions. More technological advances, such as machines, manufacturing processes, computer chips, and pharmaceuticals, have been linked to patents. Indian Patent Act, 1970 deals with the issues relating to patents.

There are basically 2 issues in the patent regime, which have lead to a controversy in the field of cyberspace. One is the dilemma as to whether computer software should be protected under copyright regime or patent regime and other is the issue relating to patenting the business methods. Section 3(k) of the Indian Patents act 1970, has specifically excluded the patenting of computer software and business methods from its subject matter.

Although, the computer programs are protected under copyrights regime but there were many cases where the courts granted patenting of computer programs. In the case of Diamond V. Diehr[18], Diehr developed a process that could cure rubber through a molding process. Diehr developed a mechanism that would continuously monitor the temperature inside the rubber. This information was submitted to a computer, which recalculated the time required for the rubber to cure based on the temperature readings using a well-known mathematical equation. This time the court did not held the invention as a mere mathematical algorithm and held that the plaintiff has developed a patentable process. Following this case, united states became the first country to patent software.

Patenting of Business methods are considered as one of the controversial topics in today's scenario. Business method is simply a process of running any aspect of an organization. Again US and Japan are some of the countries that offer patents for business methods. In the case Amazon.com V. Barnesandnoble[19], Amazon previously filed a patent claim for a business system i.e.

The Method and procedure for placing a purchasing order through a communications network, with the USPTO (United States Patent and Trademark Office). Amazon.com claimed to have invented a business technique for placing an order in which a desired product can be purchased with only a single move by a customer (such as a mouse click).

Additional information used to complete the order, such as the credit card number and mailing address, is retrieved from the consumer's previous information and deposited in the vendor's database. The defendant i.e. Barnesandnoble followed the same business method. The court restrained the defendant from using the method and declared that such method of business should be patented.

Recommendation
  1. In India, Computer Software should be patented because if not patented then many programmers can develop a new software by just changing the expression part of the existing software developed by someone else.
     
  2. Unlike many developed countries like U.S and Japan, India doesn't have any specific law that could deal with Domain name registration and disputes like cyber squatting as well.
     Currently, Such kind of disputes are dealt under Trade Mark Act,1999. So, It is high time that India should develop laws dealing with Cyber Squatting in order to punish those cyber Squatters and compensate the victims for the loss suffered for registering domain name in bad faith.
     
  3. The courts need to explore afresh the merits and demerits of Internet Linking Technologies and has to make a decision on the basis of its unique benefits and the link law disputes and its related cases. As per me, the courts shall at least recognize the right to create reference links.
     
  4. Indian Parliament must enact a legislation for patenting Business Methods as it will help the firms to make use of their unique ideas and prevent their competitors in using the same.
Conclusion
So, we can hereby conclude that with the increasing usage of internet, copying has become so simple and easy that widespread Intellectual Property Right Infringement is occurring, violating the rights and interests of the IPR owners. The present Indian Laws on Intellectual Property rights and Cyber crimes as well doesn't have enough provisions to deal with the issues in IPR starting from Domain Name Disputes like Cyber squatting to link law disputes as discussed earlier. There are various directions provided by international conventions and treaties to protect the rights of IPR owners in cyber space which are helping the e business to expand without suffering any harm. Detailed provisions governing IP rights in cyberspace are needed.

Bibliography
Books:
  • Akash Kamal Mishra Intellectual Property Rights In Cyberspace (Cyberlekh Publications, India), 1st edu.(2019)
    The author here discuses in details as to how with the increasing usage of internet, copying has become so convenient that it is affecting the rights of intellectual property holders. At first the author discuses the copyright law and then concludes as to how many of the creative works are exploited through the use of Internet. The aim of copyright law, according to him, is to benefit society by expanding awareness and knowledge. The concept behind Copyright law is to reward authors and innovators by giving them monopoly rights to commercially exploit their works for a set period of time in exchange for disclosing the work to the public. But it appears that the copyright law is the one that has been most influenced by the advent of emerging technology. The author has shown as to how all works can now be digitalized, whether they include documents, pictures, music, animation, or photographs, and once digitalized, can be combined, converted, edited, or blended to produce an infinite number of new works. In order to make an in depth analysis of the copyrights infringement in Cyber Space, the author has given certain references to software piracy, process of linking and framing, concept of Mp3 files, concept of peer to peer networking and how all this process ultimately leads to copyright violation in cyberspace. The second thing that author talks about is the Trademark violation in cyber space. He explores as to how domain name disputes like cyber squatting, cyber parasite, etc leads to trademark violation. The author has also discussed regarding certain International Rules and Regulations starting from Digital Millennium Copyright Act of United States that was a first step by United states to protect the interest of the copyright holders in the digital era & Uniform Domain Name resolution Policy (UDRP) implemented by ICANN and WIPO to deal with domain name disputes.
Article From Journals
  • Muragendra B.T. Copyright And Trademark In CyberspaceŁ International Journal Of Scientific And Engineering Research
Websites
  • https://www.techopedia.com/definition/2393/cybersquatting
  • The music industry, MP3 and copyright law
  • Intellectual Property Right - Tutorialspoint
End-Notes:
  1. Intellectual Property Right - Tutorialspoint(last visited on 18th april, 2021)
  2. Akash Kamal Mishra Intellectual Property Rights In Cyberspace (Cyberlekh Publications, India), 1st edu.(2019)
  3. What is Cyberspace? - Definition from Techopedia(Last visited on 18th april,2021)
  4. Intellectual Property Issues In Cyberspace(Last visited on 19th april,2021)
  5. Article 6 of Berne Convention,1886
  6. Section 2(ffc) of the Indian Copyright Act, 1957
  7. [1983] F.S.R. 73
  8. Muragendra B.T. Copyright And Trademark In CyberspaceŁ International Journal Of Scientific And Engineering Research.
  9. No. 97 Civ. 1190 (PKL)
  10. The music industry, MP3 and copyright law (Last visited on 24th April)
  11. Section 2(zb) of the Trade Marks Act,1999
  12. Section 45 of the Trade Mark Act,1999 lays down the process for registering the Trademark licensing Agreement
  13. https://www.techopedia.com/definition/2393/cybersquatting (Last visited on 25th April)
  14. 1999 PTC (19) 201 (Delhi
  15. Muragendra B.T. Copyright And Trademark In CyberspaceŁ International Journal Of Scientific And Engineering Research
  16. AIR 2000 Bombay 27
  17. Section 2(1)(j) of the Patent Act,2005
  18. 450 U.S. 175 (1981)
  19. 1999 U.S. Dist. LEXIS 18660
List Of Abbreviations
  1. FSR Fleet Street Reports
  2. SDNY Southern District Of New york
  3. PTC Patent & Trademark Cases
  4. AIR All India Reporter
  5. SCC Supreme Court Cases
  6. IPR Intellectual Property Rights
  7. V. Versus
  8. UDRP Uniform Domain Name Resolution Policy
  9. WIPO World Intellectual Property Organization
  10. ICANN The Internet Corporation For Assigned Names And Numbers
  11. USPTO United States Patent And Trademark Office
Table Of Cases
  1. Sega Enterprises Ltd V Richards [1983] F.S.R. 73
  2. Ticket master corporation V. Microsoft corporation (97-3055(DDP) C.D. Cal. 1997)
  3. Total News Inc. v. Washington Post Corporation No. 97 Civ. 1190 (PKL) (SDNY 1997)
  4. Yahoo Inc V. Akash Arora 1999 PTC (19) 201 (Delhi)
  5. Rediff communication ltd V. Cyber tooth AIR 2000 Bombay 27
  6. Diamond V. Diehr 450 U.S. 175 (1981)
  7. Amazon.com V. Barnesandnoble 1999 U.S. Dist. LEXIS 18660
List Of Statutes Referred
  • The Indian Copyright Act, 1957,2(ffc),2(O),14-13,16-17,30
  • The Indian Trade Mark Act, 1999.2(ZB), 2(1)(m), 2(1)(z),45
  • The Indian Patent Act,,1970.2(1)(J), 3(K), 35-46
List Of International Statutes/Conventions Referred
  • Berne Convention, 1886..Article 6-8, 9,10-11, 12-14
  • United States Copyright Act,1976 102 -106,106-107, 110, 204
Written By: Ronak Pattanaik
[email protected]

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