Intellectual property rights protection in cyberspace
From Advocatespedia, The Law Encyclopedia
The term intellectual property includes, in the broadest sense, all rights resulting from intellectual activity in the industrial, scientifically, literary, or artistic fields. The conventions establishing the WIPO defines ‘Intellectual Property’ in a broad sense .But the term Intellectual Property is define first time in Paris Convention.
Intellectual Property is derived from the term Industrial Property which includes trademarks, design marks, service marks, commercial names and designations, including indications of source and appellations of origin, and the protection against unfair competition. The main objectives of Paris Convention provides that “the protection of industrial property like patents, utility models, industrial designs, trademarks, service marks and the repression of unfair competition”. But in the WIPO defines it broadly and intellectual property shall include the right relating to:
i. Literary, artistic and scientific works;
ii. Performance of performing artists;
iii. Inventions in all fields of human endeavour;
iv. Scientific discoveries;
v. Industrial designs;
vi. Trademarks, service marks and etc;
vii. Protection against unfair competition.
The utility of computers and the internet is well understood and in fact embedded in the modern business and commerce as well as in the society in general. The advantages of the use of the computers and internet are immense in the modern business and our society can’t function smoothly without computers and information technology. But the use of internet and computers has brought along many unavoidable misuses of computer and the internet. This has been possible more so because, in the use of the computers, there is no any territorial limit and can be used from any jurisdiction. E-commerce nowadays have become very popular especially in the corporate sector. The advantages and scope of publicity of business through e-commerce or business on the World Wide Web can reach the surfers very fast in any part of the world. But this has paved the way for the emergence of the cyber-crime1.
Cyber-crime means and includes where computer is used as a means of committing crime or as a target of crime. To deal with the cyber-crimes, the parliament of India has enacted the Information Technology Act, which provides legal recognition to digital signatures and electronic records. The Act is a legal framework to facilitate and safeguard electronic transactions in the electronic medium. It is based on UNCITRAL (United Nations Commission on International Trade Law) which adopted model law on e-commerce advocating a shift from paper based environment to a computer based environment2. But the IT Act, 2000 lack somewhere to deal with the issues of Intellectual property. Intellectual property refers to creations of mind i.e. Copyright, Trademark, Patent, Geographical Indications and Integrated Circuits etc. etc. The Author in this paper hashighlighted some important issues including online copyright infringement, domains names issues and suggestion thereof With the unprecedented advent of Computers and the Internet and growing popularity of E-commerce, the Intellectual property rights have gained tremendous significance. However, there is a downside to this trend of increased dependence upon Internet and Information and communication Technologies (ICT) namely the difficulty posed in the detection & protection of Intellectual property infringements in the virtual space. The quandary is how does one protect one’s Intellectual property rights and prevent its unauthorised use in the online medium. The intellectual property infringements to a greater extent occur in the online medium rather than offline, due to the ease with which data can be accessed, copied and transferred and the anonymity associated with the cyberspace. Intellectual property infringements in cyberspace comprise of any unauthorised or unlicensed use of trademarks, trade names, service marks, images, music or sound or literary matter. The unique matrix of the cyberspace has produced different categories of infringements including Hyper linking, Deep Hyper linking, Framing, Meta-tags, spamming and Digital Copyrights violation and similar other concepts. The Patent law provides powerful protection to the inventions & protects processes and invented devices and includes unique form of computer softwares which lead to technical effect. Under the Patent Act, 1970 penalizes the unauthorised use of patents, and provides for imprisonment for a term which may extend to 2 years or with fine or both for contravention of secrecy provisions under section 118. Section 120, penalises unauthorised claim of patent rights, and penalizes with a fine of Rupees 1 lakh.
George Alfred DePenning is supposed to have made the first application for a patent in India in the year 1856. On February 28, 1856, the Government of India promulgated legislation to grant what was then termed as "exclusive privileges for the encouragement of inventions of new manufactures" i.e the Patents Act. On March 3, 1856, a civil engineer, George Alfred DePenning of 7, Grant’s Lane, Calcutta petitioned the Government of India for grant of exclusive privileges for his invention - "An Efficient Punkah Pulling Machine". On September 2, DePenning, submitted the Specifications for his invention along with drawings to illustrate its working. These were accepted and the invention was granted the first ever Intellectual Property protection in India. History of Copyright Law in India Modern copyright law developed in India gradually, in a span of more than 150 years. Copyright law entered India in 1847 through an enactment during the East India Company's regime. According to the 1847 enactment, the term of copyright was for the lifetime of the author plus seven years post-mortem. But in no case could the total term of copyright exceed a period of forty-two years. The government could grant a compulsory licence to publish a book if the owner of copyright, upon the death of the author, refused to allow its publication. The act of infringement comprised in a person’s unauthorized printing of a copyright work for (or as a part of attempt of) "sale hire, or exportation", or "for selling, publishing or exposing to sale or hire". Suit or action for infringement was to be instituted in the "highest local court exercising original civil jurisdiction." The Act provided specifically that under a contract of service copyright in "any encyclopedia, review, magazine, periodical work or work published in a series of books or parts" shall vest in the "proprietor, projector, publisher or conductor." Infringing copies were deemed to be copies of the proprietor of copyrighted work. Importantly, unlike today, copyright in a work was not automatic. Registration of copyright with the Home Office was mandatory for the enforcement of rights under the Act. However, the Act also specifically reserved the subsistence of copyright in the author, and his right to sue for its infringement to the extent available in law other than the 1847 Act. At the time of its introduction in India, copyright law had already been under development in Britain for over a century and the provisions of the 1847 enactment reflected the learnings from deliberations during this period. In 1914, the then Indian legislature enacted a new Copyright Act which merely extended most portions of the United Kingdom Copyright Act of 1911 to India. It did, however, make a few minor modifications. First, it introduced criminal sanctions for copyright infringement (sections 7 to 12). Second, it modified the scope of the term of copyright; under section 4 the "sole right" of the author to "produce, reproduce, perform or publish a translation of the work shall subsist only for a period of ten years from the date of the first publication of the work." The author, however, retained her "sole rights" if within the period of ten years she published or authorised publication of her work a translation in any language in respect of that language. The 1914 Act was continued with minor adaptations and modifications till the 1957 Act was brought into force on 24th January,
Meaning and Types of Intellectual Property Rights The concept of Intellectual property can be traced back to the Byzantine Empire where monopolies were granted. For instance in Greece a one year monopoly was given to cooks to exploit their recipes. A statutory legislation in the Senate of Venice provided exclusive privileges to people who invented any machine or process to speed up silk making. Thus, from Intellectual property being totally alien to the nomadic community came an era where every new idea was given protection under the category of Intellectual Property Rights. Copyright is known as one of the types of Intellectual properties. Before going into details of thecopyright and related issues in cyberspace, we need to know the concept of Intellectual property and its importance. To go home is to enter a place built & filled with human creativity & invention.From a carpet to a sofa, from the washing machine, the refrigerator and the telephone, to the music, the books, the paintings, family photographs, everything which we live is a product of human creativity. These things are creations of the human mind and hence called Intellectual property. Today the internet is not only used for educational purposes but also for business. Intellectual property can be categorized into two categories i.e. Industrial property and Copyright. Industrial property deals with patents, trademarks, geographical indications, designs and semiconductors layout design. On the other hand Copyright covers literary, dramatic, artistic, musical, cinematographic films and sound recording etc. etc. The primary legislations regulating Intellectual property in India are: The Patents Act 1970, The Trade Marks Act 1999, The Geographical Indications of goods (Registration and Protection) Act 1999, The Design Act 2000, The Semiconductor Integrated Circuits Layout-Design Act 2000 and the Copyright Act 1957. Copyright Issues in Cyberspace The object of the copyright is to encourage authors, composers, directors to crate original works by way of providing them the exclusive right to reproduce, publish the works for the benefit of the people. When the limited right i.e. term of copyright is over, the works belong to the public domain and anyone may reproduce them without permission. The copyright subsists in original literary, dramatic, musical, artistic, cinematographic film, sound recording and computer programme as well.5 Today, copyright serves a variety of industries including production and distribution of books, magazines and newspaper, media of entertainment that is dramatic and musical works for performances, publication of musical works and cinema, broadcasting etc. etc. copyrights being Intellectual Property travel from country to country more easily and quickly than other kinds of property. Technological progress has made copying of copyright material easy and simple. Consequently, the control of copyright infringement has very difficult and often impossible. Books, recorded tapes or video cassettes of films or computer programmes can be taken from one country to another without any difficulty and thousands of copies can made from it and distributed. Unauthorised home taping of radio and television programmes has become rampant all over the world.
UNDER WORLD COMMON LAW
There are many theories advocating the protection of Intellectual property rights, but the common thread in all of the theories is that, the effort and the initiative of the author or creator needs to be protected and rewarded and to promote creativity. The freedom provided by the internet is often abused; this is where the role of law and regulation steps in. Not only have the national legislations played a pivotal role in strengthening the Intellectual property rights but also to a certain extent the harmonization of various Intellectual property legislations across the globe through treaties and conventions have assumed a great importance. Particularly so, because of the borderless nature of cyberspace.
Treaties which govern protection of Intellectual property rights and have gained large acceptance include the Trade Related Aspects of Intellectual property Rights (TRIPS), Berne convention on the protection of literary and Artistic works, Hague Agreement concerning the Deposit of international Designs, Madrid agreement Concerning the International registration of Trademarks, Patent Co-operation Treaty and the WIPO Copyright Treaty. Trademark violation is amongst the crucial issues of Intellectual Property infringements in Cyberspace. It been held in the Yahoo Case,4 that the domain name serves the same function as Trademarks and is not a mere address but is entitled to equal protection as trade mark. Section 28 of the Trade Mark Act, 1999; confers upon the proprietors exclusive right to use their trade marks, and also grants him the right to file suit for the infringement of his right, and obtain injunction, damages and accounts of profits. The notable decision came from the Marks & Spenser’s case5, in which it was held that ‘any person who deliberately registers the name, brand-name or trade-mark of another commercial organisation, would face opposition and would be liable to passing-off.
SUMMARY OF CASES
1 Washington V. International Shoe Co, 326 US 1945 (317) ; The State may sue a Non-Resident provided the corporation had minimum contact with the forum state.
2 Calder v Jones, 465 US 783 (1984) , The Supreme Court adopted the foreign effects test to ratify a state assertion of jurisdiction over Non-resident Defendants.
3 Zippo Manufacturer v. Zippo Dot Com, 952 F Supp 1119 (DCWD Pa. 1997)
4 Yahoo.com V. Akash Arora 1999 PTC (19) 201
5 Marks & Spencer’s V. One-in-A Million 1998 FSR 265 be deceived where the name solely consists of the name or trade name of another enterprise.’ Domain Name Dispute arises from the action of ‘Cyber squatters’ intentionally registering a domain name that includes a trademarked words, company name, Brand name etc. There have been many lawsuits of domain name dispute resolution such as the ‘Marks & Spencer’s6’ case, the ‘Yahoo case’7,
6 Google V. Racha Ravinder;8; googlenetbiz.com was registered. The complainant, Google Inc filed a complaint.
7 Tata Sons Limited vs. Monu Kosuri & others9, the defendant was a well known cybersquatter who had registered a number of domain names containing the name Tata which is a well known brand name of the Plaintiff.
8 Yahoo.com V. Akash Arora 1999 PTC (19) 201
9 Marks & Spencer’s V. One-in-A Million 1998 FSR 265
10 WIPO D2009-1454 ( October 28,2009)
11 2001 PTC432
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