INTELLECTUAL PROPERTY ISSUES IN CYBERSPACE by -Jahnavi Jain
CHAPTER I: INTRODUCTION
In this era of modernization, technology is one thing that has grown the fastest. Every person needs, or at least, wants to keep up with it. Everyone is so fascinated with the technology; they often overlook the issues it brings with itself. Needless to say, the more captivating it looks, the equal is the protection it needs.
The technology has a lot to offer, it beats the issue of distance, it makes the best use of time, it sends across a message which you wish to send, which by the way took months to have reached in the past era, in milliseconds. The list of its perks goes on and on, however, this must not be understood as that it does not have any of the cons, because it does, and the author intends to discuss it later, in the paper.
It has brought up the most precious thing to many, that is, time, and given the option to value and utilize it at best. The utility of computers and technology is very well comprehended in our society and specifically the corporate sector. According to the author, the corporate sector understands it the best that this new evolving technology has a worldwide reach and approach which nobody or, for that matter, nothing else does.
This reach not only helps them increase their business, by finding more customers but also, in marketing and advertising. Marketing via online sources has proven to be the most effective way to attract customers. Again, the credit goes to the cyber world, as it only becomes possible because of the space it gives us.
Technology has come a long way in these past years, it has been tremendously evolved and the use of it has also increased to a very great extent, which often leads to unavoidable and inevitable misuses of it, to every possibility.
The very wide reach of the web has led the gates open to Cybercrime.2Cybercrime can be said to be the fastest-growing crime. People tend to think that being behind a computer hides their face, and thereof can do whatever they want to without getting caught, which actually happens to be a myth. This is a wrong thinking process that many people have adapted to.
To regulate this cyber environment and cyberspace that we have created for ourselves, safe, the lawmakers have written their minds and called it Information Technology Act, 2000 (hereinafter IT Act). They made sure to comprise, the concerns and definitions of misuses and crimes that can possibly take place, in the Act.
The IT Act recognizes every electronic transaction done between two electronic modes of devices. In the year 1996, the United Nations Commission on International Trade Law (hereinafter UNCITRAL)3, opened a way to progress in this field by adopting the model law on electronic commerce, also known as, e-commerce.
This gives the users and citizens uniformity through and through, which is quite essential in these days. Non-uniformity can result in disputes and unnecessary arguments, that could easily be avoided. The Act is very clear with words and thus, does not leave the sections to the interpretation of the reader.
Ever since the Act has been enforced, the crime rates are at a check but it can of course happen that the experts might have missed a thing or two, which is the reason that the Acts must be amended from time to time.
A very serious issue had come to notice after the implementation of the Act that in the entire Act, the issue of intellectual property (hereinafter IP) had not been addressed. This gave the people a loophole to commit a bad, without really violating any law.
Intellectual Property Rights are the rights given to any person, for the creativity he/she has done. The research paper will deal with infringements happening around with such creative minds. This is a problem which everyone faces, everywhere.
There are so many instances of innovative minds doing all the creative work whereas this whole other category of people just copies all of the same work. To prevent such copying of work all around, the rights are served to the owner of it. Such masterpieces should be published but must be safeguarded too.
Intellectual Property is broadly classified into two categories:
- Industrial Right
- Copyright and related rights
Industrial rights include three things, i.e., industrial designs, geographical indications, and patents for the inventions.
On the other hand, copyright includes various things, like architectural design, music composition and writing, film making, artistic works (drawing, painting, photography), and literary works (novels, poems, plays). Related rights secure rights for performing art in performances, broadcasters in their radio and television, and producers of phonograms in their recording. It is closely related to copyright and has not so broader a scope as it does.
When the issue relating to IP occurs in cyberspace, there is no protection. IP rights infringement is a severe problem, being faced by big brands and companies, and they cannot really do anything about it.
For instance, domain name violation, has not even been acknowledged by the experts in quite a few Acts like, Copy Right Act, or, Trademark Act or for that matter, even IT Act. There is no legality, whatsoever, to protect such infringements.
- What are the various forms of Infringement of Trademark through Cyberspace?
- What are the possible ways to infringe Copyright in Cyberspace?
- What is the dispute between Trademark and domain names?
- How can one infringe copyright in Cyberspace?
The paper aims to focus on the meaning and legal aspects of copyright and trademark. The author has made an attempt to cover the copyright issues in cyberspace and the possible ways of infringing it. The functions of the trademark and domain name dispute shall also be looked upon. The paper will also acknowledge the highlights of the Information Technology Act, 2000. Further, we will analyse the situation and current status of IP infringement in Cyberspace via a few case studies of big multimillion companies.
The digital environment can get very tricky when it comes to regulations. It gets extremely difficult to comprehend and narrow down the jurisdiction. When a crime is committed online, ie., in cyberspace, it gets complicated to prove the same for the plaintiff. Especially when Intellectual property rights come into question. The trademark and domain name has a dispute, which has been the same for years. Therefore, it is important and essential to spread knowledge
about the same, which this paper intends to do.
CHAPTER II: HIGHLIGHTS OF INFORMATION TECHNOLOGY ACT, 2000
It is an outline of the regulations for the Cyberworld to keep it safe and secure. It is a comprehensive Act, which comprises of 94 sections, divided into 13 chapters, conveniently. The Act is clear with its objectives and has in-depth explained the same.
Besides these chapters, there are 4 schedules, laying down relative changes which shall be done in the Indian Penal Code (IPC), Indian Evidence Act (IEA), Reserve Bank of India (RBI) Act, and Bankers’ Book Evidence Act.
Every Act has a purpose of enforcement and has some objectives to fulfill, IT Act’s objectives, as laid down by experts, are:
- “To respond and to give effect to the United Nation’s call to all states to give favorable consideration to model law when they enact or revise their laws so as to facilitate harmonization of the laws governing alternatives to paper-based methods of communications and storage of information.
- To provide legal recognition to transactions carried out by means of electronic data interchange and other means of electronic communication, commonly called e- commerce which involves the use of alternatives to paper-based methods of communication and storage of information.
- To facilitate e-filing of documents with the government agencies so as to promote efficient delivery of government service by means of reliable electronic ”4
Albeit, it is a very well framed Act, it has missed a few quite important points that must be protected like cybersquatting (the author intends to explain it in detail, later in this paper), or crimes that are committed by websites of foreign origin, or spamming or for that matter credit card frauds. These are the areas that lack protection and shall be looked upon by the experts.
CHAPTER III: THE INTERFACE OF INTELLECTUAL PROPERTY RIGHTS AND CYBER LAW
Copyright infringement is not as narrow as it sounds like; it has a lot within itself, which once known, could directly change the perspective of what people usually think. Our country has a specific and special act which deals with all the wrongs and infringements that possibly can happen.
It is a comprehensive act that intends to cover all the substantive and analytical aspects of copyright law. The act was drafted in 1952 because of which it must be exempted from a few things which it, should but, doesn’t really cover.
The drafting of this act goes around half a century back, therefore, after various amendments, our law stands, where it is today. Considering the year when this act was framed, it has covered an enormous scope and has managed to cover it all.
Our law has increased its radius in these past years. It has covered quite a few aspects and is yet to evolve more in the coming years.
The latest amendment which happened in this act took place in 2012 which uplifted the outcome of the whole act and made it more effective than ever.
Such amendments and implementation of the act has resulted in immense improvement. It has been evolving ever since it was drafted and will evolve and result in good for our near future.
Since the Copyright Act was framed in the 90’s; even after a few amendments, it lacked the sense of proper mechanism. This situation was severe and had to be worked on.
Anyway, also the objectives for which the act was framed, has been achieved and is still on its path for achieving some more.
The amendments have affected the functioning of our law for good. Though it still faces some issues, on the other hand, it has also helped the system work smoother than ever.
\Some copyright issues in cyberspace are:
For any information to be reached from its sender to the receiver, it needs to be transmitted. While the transmission is done, the information gets reproduced at every stage. So, when a person stores such data in a cache, that is a temporary storage area, then it will be violating the copyrights.
There is a humungous amount of work uploaded online. Technology has made it very easy for a person to copy music, books, videos or any other content available online. The owner/ creator of the mentioned content is also the copyright owner of it. Thus, copying of such material and making copies of it is said to be a violation of intellectual property.
- Protection of database:
The copyright shall subsist throughout India in original literary, dramatic, musical, and artistic works. These are the database. It is defined in The Indian Copyright Act 1957, under section 13(1) a.5
Trademark is an unmistakable and distinctive sign that is given and decided by an individual or any other venture for either merchandise or administrations, depending on the owner. It might be one or a blend of words, letters, or even numerals or in fact, a combination of all of the above.
There is a possibility that it could even compromise of drawings, images, or even three- dimensional signs, for example, the shape and bundling of merchandise, discernible signs.
It gives insurance to the proprietor and the owner of the imprint or design by guaranteeing the selective right. It helps them utilize it to distinguish their merchandise and product or to approve another to utilize it as a trade-off for installment.
They are, however, bound to give permission, to another person, when he/she urges to use it. The trademark term is supposed to be renewed from time to time.
The trademark issue in cyberspace arises in the following ways:
Cybersquatting also is known as domain squatting is an act of unauthorized registration, attracting web traffic, or using an internet domain name with the bad intent to gain profit from the goodwill of a trademark that belongs to someone else. Cybersquatters exploit the companies by selling the trademarks who are actually the real owners of it at an inflated price. Therefore it is extremely crucial for companies to nail down appropriate domain names to protect their trademarks from cybersquatters.
- Reverse domain name hijacking
It is also called Reverse Cybersquatting also commonly referred to as RDNH. The trademark owners take legal action against cybersquatters in order to secure a domain name by making cybersquatting claims. Most commonly it is adopted by big famous corporations to defend their rightful trademarks. In such a case generally, the small organizations or individuals end up transferring the ownership to avoid legal action or penalties.
- Mega tags
Meta tags are content descriptors that help search engines to identify what a particular page is all about. It includes title, description, and keywords. It exists in HTML and be read either by search engines or web crawlers. This information is used by search engines in order to rank the pages as well.
CHAPTER IV: JUDICIAL DECISIONS
In this paper, the author has focused on Trademark and Domain name issues, that is I recent times, getting very common. This is happening very often these days. We will look into a few cases that happened, to get a better understanding of what and how things take place because of lack of provision and protection to certain things, in cyberspace.
- Yahoo! v. Akash Arora and another6
The plaintiff had a very renowned and famous website called “Yahoo” which had many users. The defendant created a website, namely YahooIndia.com, that was very similar to that of the plaintiff’s, and started providing similar services after launching it.
The Court heard the sides and decided to rule in the favour of the plaintiff, i.e., Yahoo! Inc., and against the defendant.
The Court held “It was an effort to trade on the fame of yahoo’s trademark. A domain name registrant does not obtain any legal right to use that particular domain name simply because he has registered the domain name, he could still be liable for trademark infringement.”
- Tata Sons Ltd & Anr. v. Arno Palmen & Anr7
This was yet another case that deals with the Trademark issue in domain names. Almost every High Court has dealt with such a case relating to Trademark, as so did The Delhi High Court.
In this case, the plaintiff had the trademark rights of TATA” and “TATA INFOTECH”. The defendant, however, went ahead and used “WWW.TATAINFOTECH.IN” as their domain name. This would clearly mislead people.
The plaintiff, hence, filed a case for a permanent injunction against the defendants from using this domain name as it extremely identical to that of the plaintiff’s. The Court used Satyam Infoway Ltd. v. Sifynet Solutions Pvt. Ltd.8, as a precedent and gave its decision in favour of the plaintiff.
“The Court restrained the defendant, its employees, agents, assigns and all others acting on behalf of the defendant from conducting any business or dealing in any manner including using the domain name “www.tatainfotech.in” or the word “TATA” or any name comprising of the same or deceptively/confusingly similar to it regarding any goods, services or domain.”
- Amul’s Case
Amul is a co-operative society, established in Gujarat and registered under Gujarat Cooperative Milk Marketing Federation (GCMMF), In 2013, it owned the trademark rights, hence, prohibiting the use of their name for a fraudulent purpose.
However, GCMMF kept receiving complaints. They later found out, after numerous complaints that there are various websites online, who use “Amul” as a part of their domain name, hence, leaving the public and viewers in confusion and misleading them to visit their site.
These duped websites tricked people into believing that they are the original Amul proprietor, and deceived them. They illegally offered dealership, job opportunities, the opportunity for partnership, and also distributorship.
To top it, they also asked for huge amounts of cash, to be deposited in their bank accounts, ranging from Rs. 25,000 to Rs. 1,00,000.
When GCMMF started to realize this, they made various complaints and even issued notices against these fraud activities, but no major step was taken. This negligence only resulted in an increasing number of intellectual property infringers and violaters all across India.
Finally, after all the mishaps, GCMMF decided to take the case to the Delhi High Court seeking an injunction.
The Court held that “GCMMF had made out a prima facie case and stated that if no ex-parte ad-interim injunction is granted GCMMF as well as the common public would suffer irreparable losses.
The Court also granted leave to GCMMF to seek necessary relief if and when they discover any other website/domain/entity engaged in the infringement of their trademark ‘Amul’.”
- Oppedahl & Larson v. Advanced Concepts9
In this case, the owner of the company, who was also the owner of the domain name, filed a case. They filed this case, against three other companies who used “Oppedahl” and “Larson” as the keyword area in their websites.
The Company took no time, in taking action against it, as a trademark infringement and also blamed them that the only purpose they did this was because they wanted to draw the traffic of users and viewers to their site, by causing this misrepresentation.
It is, however, not so easy and convenient to allegate and win cases when it comes to domain names and trademark infringement. There are certain conditions, which must be followed and fulfilled, in order to, conclude that a domain name that is registered is abusive.
When such situations take place, then The UDRP Administrative Procedure is available for the people, when abusive registration of domain names take place. “The certain 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.”10
CHAPTER V: CONCLUSION
Cyberspace is becoming a key area for violations of intellectual property rights. The different practices of the website operators have led to an infringement of intellectual property rights and the different other rights of the various operators of the website.
This could be very harmful and dangerous for this digital generation if some steps and precautions are not taken on an urgent basis to prevent it from happening.
Everybody immediately needs to understand and comprehend the illegal use of their websites and pages, that is happening around.
With the development of cyberspace and the development of innovations, copyrights and trademarks are not limited to just ordinary intellectual property rights but also extend to intellectual property rights on the Internet.
Global conventions and treaties contain different principles and rules to ensure the infringement of intellectual property rights on the Internet, which contributes to the development of electronic commerce and electronic commerce.
The Information Innovation Act does not address Governance issues, cybercrime, cyberstalking, cyber defamation, and other intellectual property issues.
The Indian Trademark Act 1999 and the Copyright Act 1957 also remained silent online on copyright and trademark infringement issues. Although the Copyright Act of 1957 guaranteed the security of PC programs, it did not provide a solution to network theft.
Since intellectual property is one of the most important resources of every individual, it must be secured at all costs as the individual uses his skills and works for the production of intellectual property.
On the other hand, there are urgent requirements for strict laws in this area so that these crimes identified with intellectual property rights can be avoided in the future.
A new law should be proposed on the Domain Name Debate to provide trademark and service mark owners with adequate remedial action to provide adequate treatment to defendants who have received domain names that are “dishonest” or misleading to trademarks.
For brand owners, it should become an important weapon in protecting intellectual property in the online world. In the United States, they have laws specifically against cybersquatting, such as the US Consumer Protection Against Cybersquatting Act, 1999.
This bill guarantees the interests of applicants and owners of unregistered trademarks to prevent them from registering domain names. Use your brand internally and in certain circumstances prevent living people from using their own names.
So this is an ideal opportunity for India to establish adequate regulation to safeguard copyright and trademark owners’ rights.
Protecting intellectual property is critical to the success of e-commerce. Traditional laws protecting intellectual property rights have also been applied in cyberspace. Scientists advocate a combination of sociological, technical and legal measures and measures to protect the infringement of intellectual property rights in cyberspace.
FUTURE SCOPE/ SUGGESTIONS
Due to the inherent nature of the Internet, some related problems have of course emerged, such as the principle of determining jurisdiction in cyberspace. The territory of jurisdiction is undecided and unexplained, which creates quite a dispute and thus, promotes the infringers.
It can be considered a task to find a solution to the conflict of laws that also applies in cyberspace and delivers justice.
It is now, safe to conclude that enforcing intellectual property infringement laws in cyberspace is a very challenging area. However, this is a challenge in the digital age and we need to consider the interests of the generation that is present and is coming, and the society they will form and move forward.
According to the author, it not only confines to the cases that are mention in the paper, but there are also various more cases which are yet to be looked upon and to be decided on. It is something that desperately requires our legal system’s attention and which has to be worked upon and hence, be solved at the earliest.
Maybe a few amendments could help the issue, find a solution better. A strict punishment and heavy compensation must be levied on, which could possibly spread fear amongst people.
According to the author, awareness about this infringement, which is happening on such a large scale, must be spread, so that the public and users feel safe in this digitalized environment and can find a way to trust it.
1 Student at SVKM’s NMIMS Kirit P. Mehta School of Law
2Harish Chander, Cyber Laws and IT Protection, PHI learning Private Ltd. Publication 13, 14 (2012).
3 Vakul Sharma, Information Technology, Universal Law Publishing Company 11, 15 (2013).
4 Dr. Farooq Ahmad, Cyber Law in India, NEW ERA LAW PUBLICATION 16, 28 (2012).
5 The Indian Copyright Act, § 13(1)a, No. 14, Acts of Parliament, 1957 (India).
6 Yahoo! Inc. v. Akash Arora and another, 1999 Arb. L. R. 620 (Delhi High Court).
7 Tata Sons Ltd & Anr. v. Arno Palmen & Anr 563/2005 (Delhi High Court).
8 Satyam Infoway Ltd. v. Sifynet Solutions Pvt. Ltd., (AIR 2004 SC 3540).
9 Oppedahl & Larson v. Advanced Concepts
10 Uniform Domain-Name Dispute-Resolution Policy (UDRP)