AN ANALYSIS OF PROTECTION OF INTELLECTUAL PROPERTY RIGHTS IN CYBERSPACE. BY Madhuripu Raj & Malay Chakrapani

AN ANALYSIS OF PROTECTION OF INTELLECTUAL PROPERTY RIGHTS IN CYBERSPACE.

Author: Madhuripu Raj

& Malay Chakrapani

Course: B.A.LL.B (Hons.)

BATCH-(2018-2023)

College: Law College Dehradun

Institutional Affiliation: Uttaranchal University

Contact Number: 7320854372 & 7091580428

Mail ID: madhuripuraj18@gmail.com

& malaymishra16@gmail.com

Intellectual property rights is a key aspect for economic development

                                                                                                                        - Craig Venter

Abstract:

Intellectual property rights are the rights given to individuals over their original works. They usually give the creator an exclusive right over the use of his or her creation for a certain period of time. Exclusive rights are those that the owner of an intellectual property right may exercise to the exclusion of others. Intellectual property refers to mind-made works requiring imagination, talent, labour, and investment, such as musical, literary, creative, and inventive works, inventions, symbols, titles, photographs, and designs used in trade, as well as copyright protection. Patents, copyright, trademarks, designs, and geographical markings are also examples of intellectual property rights. Intellectual property is intangible, which means it only exists in the mind and has no physical presence. Nowadays, creators are encouraged and inspired to use their artistic original works for commercial purposes through intellectual property rights in cyberspace. Each kind of intellectual property has a different kind of protection and a different term of protection. In today's knowledge-based economy, intellectual property has become extremely valuable. Since 2005, Indian citizens' perception of intellectual property has risen sharply. The development of e-business and e-commerce has made it crucial for businesses and organisations to secure their intellectual property in cyberspace. Nowadays, cybercrime includes not only fraud, cyberbullying, and identity theft but also infringement of various businesses' and organisations' copyrights and trademarks. Therefore, proper legislation is required to offer adequate legal protection and recourse against those who violate intellectual property rights in cyberspace. Intellectual property rights and cyber laws cannot be separated, and original content must be protected.

Keyword:

Intellectual property, cyberspace, copyright, artistic creations, innovation, creators, design, original works, inventor, rights, infringement, trademark, patent, legal, violation, protection.

Concept Of Intellectual Property Rights:

Intellectual property rights are legal rights granted to the creator or inventor as an exclusive right to protect his innovation for a set period of time. Intellectual property rights are non-fundamental human rights that are subject to state intervention in order to fulfil human rights obligations. The evolution of IPR includes all statutorily recognised rights. The globalisation of intellectual property rights has sparked a debate about the relationship between them and human rights. Originally, the IPR only protected patents, copyrights, and trademarks of industrial design, but it now has a much broader meaning. Intellectual property rights (IPR) contribute to technological advancement by providing a mechanism for dealing with piracy, unauthorised use, and infringement. Intellectual property refers to mind-made works requiring imagination, talent, labour, and investment, such as musical, literary, creative, and inventive works, inventions, symbols, titles, photographs, and designs used in trade, as well as copyright protection. Intellectual property rights are essential for promoting and stimulating research and development. This is to protect the rights of individuals and organisations, as well as their innovative ideas and research, so that they can reap the benefits of their hard work, which is extremely important for the growth and development of humanity through individual efforts. Intellectual property empowers businesses, individuals, and other organisations to prevent others from using their name, creations, or innovations without permission. It provides investors with a compelling reason to return their investment in the field of research and development. It encourages innovative creators to disclose, publish, and distribute their discoveries or creations to the public rather than keeping them hidden. Furthermore, the term "intellectual property" was popularised in the twentieth century. This umbrella term refers to a collection of legal systems, each of which confers varying degrees of ownership rights in a specific subject matter. As a result, intellectual property rights (IPR) are the legal rights that govern the use of the creations of human minds.

Intellectual Property Rights in Cyber Space:

William Gibson coined the word "cyberspace" in 1984 to describe his vision of a massive computer network that linked all people, computers, and knowledge sources on the globe and allowed for travel, or "navigation," as though in a virtual environment.[1] According to the Oxford Dictionary, the term "cyberspace" means "the notional world in which interactive contact exists or augmented reality." A large number of computers connected together to share data, information, expertise, and documents create the virtual environment known as "cyberspace." Instead of physically meeting, two or more people can engage immediately in a virtual environment called cyberspace. While the digital age has many advantages, the ease of accessing information online and duplicating it, as well as anonymity, pose a constant threat to the protection of intellectual property rights, including copyrights, on the internet.

Unauthorized use or copying of trademarks, service marks protected by the Trademark Act of 1999, or original music, films, art work, software, multimedia, or literary matter (protected by the Copyright Act of 1957) are examples of intellectual property infringements in cyberspace. Deep linking, framing, piracy of music, software, videos, and other digital copyright infringements have all been produced by the unique matrix of cyberspace. International organisations such as WIPO have taken significant steps to harmonise copyright regimes in various jurisdictions. The WIPO copyright treaty, which entered into force on March 6, 2002, is one of the most important treaties. Although India is not a signatory to the Treaty, it is a party to the Berne Convention, which protects copyrights in various works in many countries that are signatories to the Convention. According to Section 2(o) of the Copyright Act of 1957, computer software and computer databases are protected as literary works. As a result, an original database is also copyright protected. Section 14 of the Copyright Act of 1957 states that the author of a work has the sole and exclusive right to enjoy and exploit the act's various rights for literary, dramatic, musical, or artistic work, cinematographic film, and sound recording. As per Section 14, rights include the right to reproduce the work, make copies of it, perform or communicate the work in public, make adaptations and translations, and sell or rent rights in relation to various categories of work. The term of copyright in published literary, dramatic, musical, and artistic works is the author's lifetime plus sixty years from the beginning of the calendar year following the year in which the author dies. The same is true for cinematographic film and sound recording.

Private information may occasionally be shared online by someone who is not the owner. Privacy is thus compromised. Profit is gained from the work of another. These rights are safeguarded by intellectual property rights. Intellectual property rights include things like patents, copyright, trademarks, trade secrets, industrial and layout designs, geographic indications, etc. There are several legal remedies available when these rights are violated in cyberspace.

Reasons to Protect Your Intellectual Property Right:

• The capacity to produce and invent new works in the fields of technology and culture continues to be crucial to human progress and moral advantage.
• It encourages the public to benefit from the creation's distribution, publication, and disclosure rather than keeping it a secret and a personal establishment.
• Promotion and protection of intellectual property can boost economic development and create new jobs and industries. With the latest innovations, inventions, and creativity, it has the potential to improve people's quality of life.
• They boost the market value of the creator's or innovator's company. It makes a lot of money by licencing, selling, or commercialising their products. As a result, the stock market is improving and profits are increasing.
• Creative and intellectual concepts are transformed into profitable assets. The products and services could be commercially successful and benefit a large number of people in societies all over the world, increasing the company's export opportunities. 

Challenges Faced In Protection Of Intellectual Property Rights:

With the introduction of the internet, or information media, there has been an exponential increase in the number of questions about how to defend intellectual property rights in cyberspace. However, in order to protect intellectual property rights on the Internet, it is necessary to first assess the Internet's impact on intellectual property rights. This is also required to provide a thorough legal review of jurisdictional issues in cases of infringement of intellectual property rights in cyberspace.

The twenty-first century has seen unstoppable progress in science and technology. The two major groups are computer networks and telecommunication systems. Information technology is the branch of cyber law that governs information technology for data collection, storage, transmission, and communication. India will also use information technology to gain access to traditional commodity markets. Digital technology is changing the way the developed world advances, opening up new opportunities for us in competitive fields such as copyright, trademarks, and science. By enabling access to knowledge, digital infrastructure benefits all members of society, especially those living in rural areas. The Internet is not owned or controlled by any one person or government. As a result, some important intellectual property content, such as digital music, books, and apps, can be transmitted quickly across the internet without crossing boundaries in an internet world.

1. Copyright Infringement in Cyberspace:

The Internet accelerated the creation and re-creation of literary and artistic works .Because it is so simple to spread content from author to audience and then from viewer to viewer, the Internet is a fantastic medium for artists and authors to share their work. Likely without the author's consent, technology enables all of these audiences to swiftly and simply change, manipulate, distort, or disseminate an original work. Digital media enables people to create an endless number of perfect digital renditions of music, novels, or films and to distribute such works at the speed of light via the internet. As a result of digitization, the definition of copyright on the internet has expanded. It makes it possible to quickly provide high-quality copies to potentially millions of people while working efficiently, affordably, and conveniently. Digital papers can be quickly and readily retrieved from anywhere in the world, duplicated accurately for preservation, compressed for storage, and searched practically instantly. Copyright laws are facing significant threats from networks, digital databases, electronic publishing, technological advancements, satellite networking, cellular technology, and other developing technologies. The Copyright Act of 1957 gives the owner the option of requesting remedies to uphold his rights. Any published artistic, literary, dramatic, or scientific work is granted copyright protection to the owner in order to prevent anyone else from using it in his name and making money off of it. Any use of these copyrights without the owner's consent constitutes a violation of those copyrights. Copyright infringement occurs when copies of software that are sold by someone other than the owner and distributed over the internet are made. Copying from a website or blog is also considered a copyright violation.

1. Software Piracy:

"Software piracy" refers to making unauthorised copies of computer software protected by the Copyright Act of 1957. Piracy can be classified into three types: soft-lifting software, software counterfeiting, and renting .Piracy can be classified into three types: soft-lifting software, software counterfeiting, and renting. Soft lifting is the act of sharing a programme with someone who does not have a licence to use it. Software counterfeiting is the production of fake copies of software that imitate the original and are less expensive than the original software. This includes providing the box, CDs, and manuals, all tailored to look as close to the original as possible. Renting entails someone renting a copy of software for temporary use without the permission of the copyright holder, which violates the software licence agreement.

1. Trademark Infringement in Cyberspace:

A trademark is a distinct identifier mark that can be graphically represented. The main idea is to differentiate one person's goods or services from those of others, which may include the shape of the goods, their packaging, and colour combination. It assists customers in identifying products and services based on their reputation and quality. Under a trademark licencing agreement, the owner of the trademark may authorise a third party to exploit the mark in the course of trade in order to increase the popularity of the mark among consumers and to gain monetary benefits.

1. Cybersquatting:

Cybersquatting occurs when domain names are registered, sold, or trafficked in order to profit from someone else's goodwill. It is a punishable offence.

1. Mega Tagging:

It is a technique for increasing the number of users who access a site by including a word in the keyword section so that the search engine picks up the word and directs users to the site despite the fact that the site has nothing to do with that word. When a website contains meta tags from other websites, this may result in trademark infringement, affecting their business.

1. Reverse name hijacking:

It is also known as "reverse cybersquatting." It occurs when a trademark owner attempts to secure a website name by filing false cybersquatting claims against the rightful owner of the website name. To avoid legal action and costly expenses, domain name owners must sometimes transfer ownership of the domain name to trademark owners, particularly when the domain names belong to smaller organisations or individuals who are not financially sound to fight the case. Reverse domain name hijacking is typically carried out by larger corporations and well-known, wealthy individuals.

1. Patent Infringement in Cyberspace:

A patent is a type of intellectual property right that grants an individual the legal right to prevent others from making, using, or selling his invention without his permission. The state grants a person patent rights only if the invention is useful, original, and not copied from any other individual or entity, and non-obvious, that is, the invention is not known and cannot be anticipated by someone working in the same industry. Patents have been linked to more technological advances, such as machines, manufacturing processes, computer chips, and pharmaceuticals. The Indian Patent Act of 1970 addresses patent-related issues. The penalty for unauthorised access to and use of other original workers' patents is outlined in the Patent Act of 1970. It punishes this kind of behaviour and imposes a sentence of up to two years. The violation of the confidentiality clauses in the intellectual property rights is likewise punishable under Section 118. Section 120 of the Patent Law Act imposes a fine of one lakh rupees on an individual who makes an unauthorised claim to a patent.

Remedies for Violation of Intellectual Property Rights

In terms of copyright violations, when copyright is violated, the owners of the copyright have the right to sue for restitution, injunctions, account benefit, and delivery of the infringing products. Copyright holders whose rights have been violated have several options for seeking redress in Indian courts. The impoundment and destruction of all unauthorised copies, including master copies, is one of these steps.Another way that courts protect copyright holders is through monetary restitution, which may include monetary penalties, punitive damages, legal expenses, and attorney fees. The Copyright Act of 1957 provides three types of remedies in the event of copyright infringement: civil remedies (sections 54–62), criminal remedies (sections 63, 63B), and administrative remedies. The remedies of a civil nature available to the aggrieved person under the Act are: injunction, damages, conversion of account, restrain, and otherwise as conferred by law. Section 63 of the Copyright Act of 1957 prescribes criminal penalties for knowing use of an infringing copy of a computer programme. Section 63B of the Copyright Act of 1957 states that anyone who knowingly uses an infringing copy of a computer programme on a computer is subject to the following penalties: punishable by imprisonment for a period not less than seven days but not less than three years; and with a fine that cannot be less than Rs. 50,000 but can go up to Rs. 2 lakh. The Copyright Amendment Act 2012 provides that the infringer or Internet Service Provider will be held liable for copyright violations on the Internet (ISP). Many people are interested in the act of copyright theft on the internet.

Remedies available for Trademark Violation: A person whose trademark has been copied may file a complaint before a criminal court or file a suit for infringement in a civil court. The remedies of a civil nature available to the aggrieved person under the Act are: injunction, damages, conversion of account, restrain, and otherwise as conferred by law, whether the trademark has been registered or not. The trademarks that are registered are covered under Section 28 of the act, whereas the trademarks that are not registered are covered under Section 27(2) of the Trade Mark Act. Chapter XII of the Trade Marks Act of 1999, which addresses offences, penalties, and procedures, specifies criminal remedies for trade mark infringement. In accordance with Sections 103 and 104, offenders shall be subject to imprisonment for a term of not less than six months and not more than three years, as well as a fine of not less than 50,000 and not more than 2 lakh. Section 105 of the Trade Marks Act of 1999 contains the provision for increased penalties. Both the Trademarks Act of 1999 and the Copyright Act of 1957 grant the police the right to search for and seize infringing property under Sections 115 and 64, respectively, for the purpose of carrying out the laws relating to trademark or copyright infringement.

Remedies available for Patent Violation: The Patents Act of 1970 gives the patentee the right to sue if his exclusive patent rights are violated. The limitation period for filing a suit under the Limitation Act is three years from the date of infringement of patent rights. The patentee may file the case in the jurisdiction of his residence, his place of business, or the location of the cause of action. The burden of proof usually falls on the plaintiff to prove that the defendant violated the patent, but in some cases, the burden of proof is decided by the court. In India, both district courts and high courts have the authority to hear patent infringement cases. Section 108(1) of the Patents Act of 1970 grants relief to the person if his patent rights are violated. The remedies of a civil nature available to the aggrieved person under the Act are: an injunction, i.e., a temporary or permanent injunction; damages; or a fine of one lakh rupees imposed on an individual for making an unauthorised claim to a patent under Section 120 of the Patent Law Act; or seizure or forfeiture of infringing goods as per the court's discretion and otherwise as conferred by law.

Conclusions:

Intellectual property rights are increasingly being infringed in cyberspace. Various practises by cyber-site operators resulted in infringements on intellectual property rights and other website operators' rights. It is critical that people be aware of any unauthorised use of their websites or webpages. With the expansion of cyberspace and technological advancements, copyright and trademarks are no longer limited to traditional intellectual property but have also 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 assisting e-commerce and e-businesses in expanding. The Information Technology Act makes no mention of jurisdictional issues, cybercrimes involving intellectual property rights, or cybercrime in general. The Indian Trademark Act of 1999 and the Copyright Act of 1957 are also deafeningly silent on issues of online trademark and copyright infringement. The Copyright Act of 1957 protects computer programmes, but it does not provide remedies for cyber piracy.

References:

1. Riffat Fatima, “An Analysis of Protection of Intellectual Property Rights in Cyberspace” 3 IJLSI 1155 (2021).
2. Tripti Bhushan and Yash Arora, “Intellectual Property Rights and Its Protection in Cyberspace and media laws” 6 IJARIIE 110 (2020).
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[1] [1] Lawrence Gomes, "Cyber Crimes,"  Criminal Law Journal, Vol. 4, Oct-Dec 2001, at 185