IP Issues and Cyber Law
The importance of computers and the internet is well known and is in fact rooted in modern business and industry as well as in the general society. The benefits of using the computers and the internet in modern business are enormous and without computers and information technology our society cannot work smoothly. Yet the use of the internet and computers has carried with it many possible device and software misuses. More so, this was necessary since there is no territorial restriction in the use of the machines and can be used from any jurisdiction. E-commerce has become very common nowadays especially in the corporate sector.
Cyber-crime involves and includes where computers are used as a way to commit crime or as a crime target. India's parliament has passed the Information Technology Act to deal with cyber-crimes, which provides legal protections for digital signatures and electronic documents. The Act is a regulatory mechanism for promoting and safeguarding electronic media transactions. It is based on UNCITRAL (United Nations Commission on International Trade Law), which implemented model e-commerce legislation promoting a change from a paper-based system to a computer-based setting.
But the IT Act, 2000, needs somewhere to address Intellectual Property issues. Intellectual property applies to intellectual inventions i.e. Copyright, trademark, patent, geographic and integrated circuits etc. etc. In this article , the author has addressed several important issues including infringement of copyright online, problems concerning domain names and suggestions.
Highlights of IT Act 2000
The Act consists of 94 articles, divided into 13 chapters. The chapters include digital signature, electronic governance, issuance, recognition and dispatch of electronic records, protection of electronic records and digital signatures, regulation of certifying authorities, duties of subscribers to digital signature certificates, court challenges for cyber control, network service providers' offences and liabilities. The act has four schedules spelling out the specific changes to be rendered to the Indian Penal Code, the Indian Evidence Act, the Bankers' Books Evidence Act and the Indian Reserve Act.
Meanings and types of IPR
The Intellectual Property principle can be traced back to the Byzantine Empire where monopolies have been issued. In Greece for instance, cooks were granted a one-year monopoly to exploit their recipes. A legislative law in the Venice Senate granted exclusive rights to people who invented some machinery or method to speed up silk making. Therefore, from intellectual property being entirely alien to the nomadic world came an age in which any new concept within the umbrella of Intellectual Property Rights was granted protection. Copyright is regarded as one Intellectual Property type. Before moving through the particulars of copyright and related problems in cyberspace, we need to know the meaning and value of Intellectual Property. Going home means entering a place designed and filled with human imagination & innovation.
Intellectual property can be divided into two groups, i.e. copyright and intellectual property. Industrial property deals with the product design of patents, trademarks, geographical labels, prototypes, and semiconductors. Copyright on the other hand includes literary, dramatic, artistic, musical, cinematographic and sound recording films etc.
Copyrights issues in cyber space
The object of copyright is to enable writers, composers, directors to crate original works by granting them the exclusive right to reproduce, and to publish the works for the benefit of the people. When the limited right, i.e. the copyright term, is over, the works belong to the public domain and can be reproduced by anyone without permission. The copyright also applies to original literary, dramatic, musical, artistic, cinematographic, sound recording and computer program as well.
Today, copyright serves a variety of industries including the production and distribution of books, magazines and newspapers, entertainment media that is dramatic and musical works for performances, the publication of musical works and cinema, broadcasting, etc., etc. Intellectual Property travels more easily and quickly from country to country than other types of property. Technological advancement has made copying material relating to copyright easy and quick. Control of the copyright infringement is therefore very difficult and often impossible. Books, digital tapes or video cassettes of movies or computer programs can be taken from one country to another without any trouble and can produce and distribute thousands of copies from it. Unauthorized home taping of radio and television programs is rampant around the globe.
Infringement of copyright in cyberspace
Digital technology has made it possible to take content from one site, modify it or simply reproduce it on another site, and this has posed new challenges to the traditional interpretation of individual rights and protection. Anyone with a PC (Personal Computers) and a modem may become an editor. Just a mouse click away is to download, upload and save transforming or crashing a derivative work. A web page is not much different from a book, a magazine or a multimedia CD-ROM and will be eligible for copyright protection because it contains text graphics and even audio and video.
Copyright in a work shall be deemed to be infringed: -
a. Where any person, without a license granted under this Act by the copyright owner or registrar of copyrights, or in contravention of the conditions of the license so granted or of any condition imposed under this Act by the competent authority: -
i. Does everything, the exclusive right to do bestowed on the proprietor of the copyright by this Act;
ii. permits any place to be used to communicate the work to the public for profit where such communication constitutes an infringement of copyright in the work, unless he was aware and had no reasonable grounds to believe that such communication to the public would constitute an infringement of copyright or copyright;
b. When someone else does
i. make or sell or hire, or sell or hire, or through commercial displays or offerings for sale or rent, or
ii. distributes for commercial purposes or to the extent that the proprietor of the copyright is prejudicially affected;
iii. by way of public trade shows; or
iv. to imports to India
Since Intellectual Property is one of any person's precious assets, it should be protected at all cost as a individual puts his expertise and labour into Intellectual Property development. On the other hand, there is an urgent need for the strict laws in this field, so that in future these IPR-related crimes can be avoided. The purpose of the new domain name dispute law should be to give trademark and service mark owners legal remedies against defendants who obtain "in bad faith" domain names that are identical or confusingly similar to a trademark. It will serve as an essential tool in the online world for trademark holders to defend their intellectual property. In the U.S., they have special cybersquatting prevention legislation i.e. "U.S. Anti-Cybersquatting Consumer Protection Act, 1999 "which protects the interests of owners of both registered and unregistered trademarks from the use of their trademarks within domain names and also protects living persons from the use of their personal names under certain conditions. So it is high time that India enacted such appropriate legislation that would protect the rights of copyright owners, trademark owners.
Contributed by: Ayush Garg