Intellectual property refers to the rights to the original expression of ideas and inventions in a tangible form that may be replicated multiple times. The rights of human endeavor in its intellectually inventive form require the protection of such property from unfair competition. Intellectual property is an investment of resources and abilities in which the creator encourages research and development in order to accomplish technological and economic developments for the country and society as a whole. Intellectual property laws have established themselves as a powerful instrument for keeping intellectual endeavors intangible.
Global marketplaces have benefited copyright owners since the advent of cyber technology. This is true, yet the risks of ignoring the implications of rising trends outweigh the benefits. Cyber technology, like any other desired creation, has its drawbacks. Unlicensed use of trade marks, names, service, literature, audios, videos and codes through illegitimate practices such as spamming, meta-tagging, hyperlinking, framing etc. have emerged as common infringements to the new cyber universe of intellect and skills.
This article discusses the variations of Intellectual Properties and the laws present to protect them in the cyberspace.
Intellectual Property
Intellectual property refers to products that are the result of people's mental labors. This encompasses a wide range of works, including traditional practices, performances, technological inventions, literary works, and so on.
Intellectual property has various types:
1. Patents: Patents are rights awarded to an individual for the invention of a product or technique that provides a new method of addressing a problem or performing a task. A person seeking a patent for his invention must demonstrate that his invention is novel. A patent is issued for a specific amount of time. When a patent's term period expires, it becomes free to use for the general public without having to pay any fees. In India, a typical patent has a 20-year term and is awarded under the Patents Act of 1970.
2. Trademarks: A trademark is a distinguishing mark that identifies the manufacturer, producer, or service provider. These can take the shape of a logo, a sign, a printed name, or packaging. A trademark enables the consumer to identify a specific level of quality with his items, which the consumer can readily rely on when shopping in an open market. It is provided for a set amount of time. Unlike patents, however, a trademark can be renewed indefinitely by paying renewal fees to the relevant authorities. The Trademarks Act of 1999 governs trademarks in India.
3. Industrial Design: The visual characteristics of a product that cannot be covered by a patent are referred to as industrial design. It could be a two-dimensional or three-dimensional design. It should be non-functional in nature, i.e., it should be entirely beautiful in nature rather than utilitarian. Industrial Design can protect products from a wide range of categories, including clothes, ornaments, technical tools and devices. To be qualified for protection, the Industrial Design must be novel, that is, there must be no other designs like it on the market.
4. Geographical Indication: Geographical Indications are used to identify the origin of a product. These products have some characteristics with products from that particular geographic place. An ‘Appellation of Origin’ geographical indication is used for items that can only be produced in a given region. It means that a product with that GI can only be made in that region of the world, and not anywhere else, because of the unique geographical conditions of that location.
5. Copyright: The rights provided to producers of creative works are known as copyright. Copyright laws protect works such as literary works (poetry, literature and nonfiction) and creative works (paintings, music). Unlike other types of intellectual property, Copyright holders own their creations for the rest of their lives. Copyright continues to remain for 5060 years after a person's death, depending on the jurisdiction. In this situation, the Copyright holder exercises authority over the Copyright. It also safeguards the rights that arise from such creative works. Related Rights are what they're called. These are rights that have accrued as a result of the copyrighted content's availability. Related rights, are not protected for as long as Copyright is. Related rights are normally valid for 50 years from the date of performance or broadcast, subject to the jurisdiction.
Protection of IP in Cyberspace
As the world shrinks into cyberspace with no borders, cross-border conflicts against private parties and hybrid infringements are becoming a growing worry. Courts are constantly faced with the question of which cases are under their jurisdiction for prescription, adjudication, and enforcement. The Minimum Contacts Test, the Effects Test, and the Sliding Scale Test or 'Zippo Test' are among the many theories and legal concepts that have emerged in recent years to address this major impediment to courts' jurisdiction to try infringements of intellectual property in the open world of cyberspace. The Minimum Contacts test applies where one or both parties are from beyond the court's territorial jurisdiction and have some interaction with the state where the court is located. When the injury's repercussions can be felt in the state where the court is located, the Effects test is utilized. Based on non-resident interactivities and non-resident online operators' communication of business information over the internet, the Sliding Test determines personal jurisdiction.
Furthermore, the WIPO Copyright Treaty (1996), a highly specific agreement under the Berne Convention that obligates all member nations, including those not bound by the Berne Convention, to comply with the substantive terms of the Berne Convention for the Protection of Literary and Artistic Works' 1971 (Paris) Act (1866). India is not a signatory to the WIPO Copyright Treaty, while being a signatory to the Berne Convention. The Treaty focuses on copyright protection and recognizes the need for new, up-to-date rules as well as clarification of present copyright laws' interpretation, particularly as they pertain to the digital environment. Subject to the exceptions set forth in the Berne Convention, the accord extends the freedom of reproduction to electronic records or digital works in the cyberspace.
Section 51 (a) (ii) of the Copyrights Acti, in India discusses the fact that a copyright owner has exclusive rights and that anything to the contrary is copyright infringement. In the absence of any express provision defining an internet service provider's (ISP) liability, this legal provision may be interpreted to include the terms "any place" and "permits for profit," which allow ISPs to store user data at their business locations and make it available for broadcast for profit by charging for services and advertisements. However, by include factors such as "knowledge" and "due diligence" that must be met before the ISP may be held accountable for copyright infringement, such an interpretation is unlikely to gain momentum. Section 51 (b) (ii) denotes copyright infringement through distribution, whether for business/trade or to the detriment of the copyright owner. Even if the trade/business component is absent, the P2P network in India would propagate content that is harmful to the copyright owner's interests. Hon'ble Courts should be cautious when granting the defense of fair dealing for copyright infringement under Section 52 of the Copyright Act.ii
Section 75 of the Information Technology Actiii relates to offences committed outside of India involving a computer, computer system, or computer network located in India. Section 4 of the Indian Penal Codeiv, broadens the scope of the law to include offences committed outside of India that target a computer resource in India. In the cyber world, Indian courts have the legal instruments to adjudicate against infringers of intellectual property, and judicial activism combined with effective jurisprudence would be extremely beneficial to intellectual property owners. The Information Technology (Intermediaries Guidelines) Rules 2011 and Section 79 of the Information Technology Actv provide a conditional safe harbor from liability for internet intermediaries, while leaving their liability under any other civil or criminal Act subject to interpretation. The Information Technology Actvi exempts an intermediary from liability for any third-party content placed on its site. The 2011 Guidelines establish a due diligence methodology for intermediaries to follow in order to qualify for the Section 79 Information Technology Actvii, exemption. As a result, proactive judicial interpretation, based on the facts of each case, is critical.
Conclusion
With the growing trend of technological modernization, it is critical to have a serious legal discussion about the intellectual property challenges that will engulf the cyber world. The current debate necessitates solutions. Traditional intellectual property protection measures are insufficient to protect intellectual property in cyberspace; more is required, due to the unique issues that cyberspace presents. Cryptography, encryption, digital watermarks and signatures are all important technological protection mechanisms for copyright content in the digital environment. It is critical to protect rights management information in order to identify the work, its author, its owner, and the numbers or codes used to represent such works. Solutions must go beyond the legal indulgence of regulations and their enforcement, and must include the proactiveness of copyright owners, their successors, software businesses, and others. The main challenge is balancing the rights of the numerous participants without jeopardizing the overall goal. It doesn't matter if it's a free flow of knowledge or the economic rewards that come with it. Thus, proper administration is a key essential to such situations.
i Copyrights Act, 1957
ii Copyrights Act, 1957
iii Information Technology Act, 2000
iv Indian Penal Code, 1860
v Information Technology Act, 2000
vi Information Technology Act, 2000
vii Information Technology Act, 2000
This article is written by Aadiya Sinha of Rajiv Gandhi National University of Law.