Cyber Space and IPR

Protection of Intellectual Property Rights and Cyber Space

The consequence of any unlawful, unauthorized or unlicensed use of trademarks, trade name, service marks, music, sound, literary matter or even images is the infringement in Intellectual Property. This contravention can also consist in the range of Cyber Space further widening its arena to harsher and developed phases of illegal contraventions like Hyper Linking, Deep Hyper Linking, and Framing, Meta-tags, Spamming and Digital Copyrights violation. For these unauthorized breaches, the patent law offers a dominant defensive system to the inventions of the devices and its related content and includes a unique form of computer software.

Under Patent Act, 1970 the punishment to tackle these contraventions of secrecy is mentioned explicitly in Section 118 by stating that imprisonment for a term which may extend to 2 years or fine or both  and hence, penalizes the unauthorized use of patents. Along with this, Section 120 reprimands illegal claims of patent rights with a fine of Rupees 1 Lakh.

With the unprecedented advent of Computers and the Internet with the upgrading popularity of E-commerce, the Intellectual Property Rights have gained tremendous connotation. However, there is a shortcoming to this trend of increased dependence upon Internet and Information and communication Technologies (ICT) namely the complexity posed in the detection & protection of Intellectual property infringements in the virtual space. The predicament is how does one protect one’s Intellectual property rights and prevent its unconstitutional use in the online medium. The Intellectual Property Infringements to a greater extent transpire in the online medium rather than offline, due to the alleviation with which data can be accessed, copied and transferred and the anonymity allied with the cyberspace.

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Trade mark law has not only sheltered conventional trademarks (like MOBIL, NIKE or AUDI) but also the overall shape and appearance of those marks. Copyright law provides strong fortification for sound recordings, literary material, and cinematographic works amongst other forms of art that are original and newly discrete.

There are many theories advocating the security of Intellectual property rights, but the universal 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 endorse or encourage creativity. The freedom provided by the internet is frequently abused; this is where the job of law and regulation steps in. Not only have the national legislations played a pivotal role in amplification 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 understood a great importance.

Jurisdiction itself is a complex problem in cyberspace and a number of theories or legal principles have been evolved overtime to solve the complex question of jurisdiction. Treaties which administer protection of Intellectual property rights and have gained large acceptance include the Trade Related Aspects of Intellectual property Rights (TRIPS), Berne convention on the fortification of literary and Artistic works, Hague Agreement pertaining to the Deposit of international Designs, Madrid agreement regarding the International registration of Trademarks, Patent Co-operation Treaty and the WIPO Copyright Treaty.

In Yahoo.com v. Akash Arora [(1999) PTC (19) 201], it was held that the domain name serves the same utility as Trademarks and is not a mere address but is entitled to equivalent protection as trade mark. Section 28 of the Trade Mark Act, 1999 consults upon the exclusive right of proprietors to use their trademarks, and also grants him the right to file suit for the contravention of his right, and attain injunction, reimbursement and accounts of profits.

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In the case of Marks & Spencer’s v. One-in-A Million [(1998) FSR 265], a notable decision was held regarding any person who intentionally registers the name, brand-name or trade-mark of another viable organization, would face opposition and would be liable to passing-off.

One of the most eminent cited lawsuits worldwide for Digital Copyright Infringements is of the A&M Records Inc. v. Napster Inc. [(2000) WL 573136], whereby the applicant was sued by the defendants for P2P file distribution. In the instant issue, Napster offered software whereby the user can distribute media files (MP3 Files) stored in his computer to other user of Napster. There was a resolution between the parties whereby Napster had to give a third of all future profits to the settling companies and Napster Inc. was closed in 2000.

Computer Software are also covered under the Copyright Law under the provision of Section 2(o), Copyright Act 1957, which recognizes computer applications and computer data’s creative work entitled to copyright security. However, the same protection has not been arranged to Business methods.

Conclusion

To initiate a successive E-commerce foundation, the protection and guardianship of Intellectual Property is pertinent. Although, there is an application of the conventional laws in Cyberspace, but due to the advanced and technological course of nature, the procedure to tackle it have not been enough and some of the imperative issues has been left out such as the standards to determine jurisdiction, recognition of the hybrid varieties of online contraventions and many more. Intellectuals have advocated that an approach with a combination of factors like sociological, technical and legal will upheld the initiative to protect violation of Intellectual Property in Cyberspace as well. It is although a very contesting arena but to keep up with the progression of the digital world and keep under notice the emerging e- commerce businesses and technologies, Intellectual Property Rights can create a better and justifiable course of living.

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Author: Gayatri Sharma,
GGSIPU, Jims School of Law, 2nd year/ Student

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