CYBER LAW AND INTELLECTUAL PROPERTY

INTRODUCTION

Technology has become a boon for the society .Technological development in the 21st century has reached such a point that we have moved from paper to paperless world. The advancement of technology has touched every aspect of a human life and bought significant changes in human life. In the contemporary era , Cyber space , is extensively used to store ,access or exchange every kind of information ranging from confidential data to maintaining records in its database. Technological advancement and revolution of digitization has also enabled people to store intangible creations of human intellect in the virtual world through internet. Such innovation are termed as “intellectual property”. This intellectual property possess some proprietary value, due to which such novel ideas or inventions are susceptible to theft and other crimes.However Cyber law is void when it comes to the protection of Intellectual Property Rights. Cyber law has only been framed to prevent misuse of possible Cyber crimes and regulations to prevent misuse of technology. Other statutes dealing such as Trademark Act & Copyright Act have not explicitly dealt with infringement that occurs over internet.

CONCEPT:

Computer Law or Information and Communication Technology Law : It can be briefly stated as the legal matter that emanated from the growth of technologies, the advancement of computers and other related devices, the use of Internet and Electronic Data swapping Cyber Law is the law that governs Cyber space. Cyber Law is a standard term which refers to all the legal and authoritarian aspects of Internet and the World Wide Web. Anything apprehensive with or related to or emanating from any legal aspects or issues concerning any activity of citizens and others, in Cyberspace comes in the domain of Cyber Law. Intellectual property means the legal privileges which result from intellectual doings in the industrial, scientific, literary and creative fields as stated by WIPO. Some significant and most extensively used IPR’s include Copyright, Trademark ,Patent, Industrial Designs and many others

Relation between copyright and Cyberspace: The bond between the Internet and Copyright law is knotty. The internet is a worldwide structure for the broadcast and facsimile of different stuffs, much of which is safeguarded by Copyright. It therefore presents unimaginable possibilities for copyright intrusion that were not possible in the recent past. It may also challenge the copyright law. Cyberspace also consists of database. Database refers to compilation of data, works, information or other independent material prearranged in a structured or systematic way following some basic code of compilation; Database should be given copyright shield if they are the collection of creative works as they are the product of ability and hard work engaged by the author in creating the work.

SOME RISING PROBLEMS LINKED TO COPYRIGHT IN CYBER SPACE:

1. Linking

: ‘Linking’ is the practice of allowing a user ,to move from one web site to another by clicking on a ‚link. Linking comes into two forms hypertext linking and inline linking. A hypertext reference link appears on screen as a highlighted reference. When an Internet user clicks on the highlighted text, the web browsing software \retrieves the consequent article from a peripheral site and creates a copy, which is then displayed on screen. An online link allows a web site creator to align a graphical image from an external site and incorporate it as an element of the local and display it on \the screen.

Ø Shetland times Ltd. v. WillsThe plaintiff owned and published a newspaper called the Shetland times (the Times) and prepared different editions of newspaper accessible on the Internet. The second defendant provided a news reporting service under the name of the Shetland News (the News). The defendants established a web site and included among the headlines on their front page a number of headlines appearing in issues of the Times. These headlines were exact reproduction of the claimant’s headlines.When the user clicked on one of these headlines the Internet user could get access to the comparative text in the Times. Moving on from the first page of the Times. The plaintiff contented that that the assimilation by the defenders in their Web site of the headlines provided at the plaintiff’s Web site constitute an breach.”The court issued an interim order and directed that such linking be removed ,and subjected for the further proceedings on the subject.

2. Downloading Of Copyright Material:

Once the copyright stuff is uploaded and has been made available, there is a next possibility that Internet users will download it from the internet. There is little ambiguity that users are willing to download such material without the appropriate assent of the authority of the copyright owners. However copyright owners are indisposed to take actions against millions of individual infringers.

Ø A&M Record Inc. v. Napster Inc8

A&M Record Inc. v. Napster Inc.Napster facilitated the diffusion of MP3 files between and amongst its users. The company disseminated its file sharing software for free by means of its web site through the course of action called ‘peer to peer’ (P2P) file sharing. Its users could seek out and share MP3 music archive that was catalogued on Napster’s central server. These files could be downloaded directly from user’s hard drivers over the Internet. A&M records and other record companies brought copyright infringement action not in favour of Napster in U.S. District Court and Court decided in favour of claimant.

3. Copyright and Software Piracy:

In India, the copyright of PC programming is ensured under the Indian Copyright Act of 1957. Copyright asserts for programming with an Individual creator. The creation goes on for the term of the originator’s life and proceeds with 60 years after the originator’s decease. It is illegitimate to copy or acquire a software devoid of authorized licensing for each copy.

Ø Microsoft Corporation v. Yogesh Popat:

The defendants were engaged in the commerce of assembly and vending of computers since1996 and were promoting computers loaded with pirated versions of Microsoft Software. Microsoft positioned a ambush order with the defendants,with the help of its own employee and the defendants sold to this employee a computer installed with Microsoft’s pirated software. Subsequently, Microsoft sued the defendants for permanent injunction and also charged of the damages caused to the Microsoft’s user base and its revenues.Defendants did not show at all in the court and the court approved the damages of Rs. 2 Crore and injunction.

n TRADEMARK AND CYBER SPACE

Trademark : Trademarks are names and symbols that a company uses to classify its merchandise or overhaul in the marketplace .Trademarks are the laws which are responsible for the recognition of the symbol for the purpose of representations. Trademarks rights consists of a scrupulous insignia(logo), a company name, a unique packaging style etc.

Trademarks serve several useful functions.

² Relation between Trademark and Cyberspace :

The growth of Internet has brought a new set of challenges of the trademark law of most importance is the crossing point between trademarks and domain names. Domain names are very simple .It is the address of a particular site on the internet .It is similar to a telephone number. On the web to correspond with or contact a simple specific site,each site ought to have an address. Internet protocol address or shortly known as IP act as such address.

1. Trademark and Cybersquatting:

Cyber squatting :Also known as domain squatting it is the action of registering ,trafficking in, or using a domain name with bad faith objective to yield from the goodwill of a trademark which is owned by a different person. Those who Cybersquat use these comodity names for web traffic to hunt for advertisements and also push their products in the other.Trademark’s name at an exaggerated price

Ø Arun Jaitley v. Network Solutions Private Ltd

Petitioner is a major leader in India. The name ARUN JAITLEY, being the individual name of the Petitioner, without more ado gets connected with the Petitioner and no one else. The Petitioner wanted to hold back the domain http://www.arunjaitley.com. It was assumed that after the termination of the domain name, the Defendants with malignant intentions did not delete the said domain and did not reassign the same to the Petitioner. Whereas, the said domain name was transferred to Defendant No. 3, which was an public sale site for domain names. Hence, petitioner filed suit for permanent injunction limiting the Defendants from exploitation and instantaneous transfer of domain name to WWW. ARUNJAITLEY.COM. Every Domain names are secluded under the law of passing off with a individual name being no exemption. Right to use a personal name is superior to that of the profitable right of using the trade mark and thus the prerogative to use it as a trade mark or domain name depends on the person having his or her personal name. No ordinary person would claim privileges in the domain name http://www.arunjaitley.com and there is no corporate body claiming privileges in the same except unknown Registering establishment. Name of Mr. Arun Jaitley comes under the category wherein it being a personal name has reached distinctive identity of its own. Therefore, the said name due its unique nature distinguishing character attached with the gained esteem in several fields whether being in politics, or in advocacy, or in part of emergency protest, or as leader or as debater has become well known personal name/mark under the trade mark law. The same law ensures him the advantage to refrain others from using this name indefensibly in addition to his individual right to take legal action them for the maltreatment of his name. Therefore, use of the name Arun Jaitley on any grounds by the Defendants as a domain name and charging its custody, the said domain without sufficient cause is a contravention of the ICANN policy and a bad trust registration .As apprehended the said Defendant No. 3 and its entity are directed to reassign the said domain name to the Petitioner with instantaneous effect. The indispensable principal governing body under the ICANN rules is also bound for to block this domain name and without delay hand over this domain name to the Petitioner and indispensable charges and official proceedings. The Defendant No. 1 and 2 must put together solemn efforts and oblige in transforming the impeached domain name in favour of the Plaintiff.

2. Cyber Parasite:

Like Cyber squatters, Cyber parasites also expect to grow financially, however, unlike squatters such growth is anticipated through the use of the domain name. In some cases a famous name will be registered by another, in other cases, a mark that is analogous to or a frequently mistyped version of a renowned name will be used. The difference of opinion might occur between direct competitors and flanked by those in comparable outline of business or between those who merely aspire to indulge in ‘passing off’ of the names prominence

Ø Yahoo Inc. v. Akash Arora

This case is to be well thought-out as the foremost domain case in India resolute by Supreme Court. Yahoo! Inc. which was the proprietor of the trademark Yahoo!.Adopted in 1994 and the domain name “yahoo.com”in 1995 the trademark claim were filed by the petitioner in 69 countries including in India. The defendant was attempting to use the domain name “yahooindia.com” for internet correlated services.The petitioner brought a action in opposition to the defendant. The Delhi High Court established an injunction limiting the defendant from trading in services and goods on the internet or otherwise under the domain name “yahooindia.com” or any other domain name that is indistinguishable to or deceptively similar to the petitioner’s domain yahoo.com

Ø Satyam Infoway Ltd. V Sifynet Solutions Pvt. Ltd

In this case, the litigant registered numerous domain names like http://www.sifynet.com, http://www.sifyrealestate.com, http://www.sifymain.comwith the globally renowned “sify” is a devised word, which have elements of its corporate name, Satyam Infoway. The appellant claims a wide reputation and goodwill in the name “sify”.The respondent started carrying on the business of internet marketing under the domain names,“http://www.siffynet.net” and “www.siffynet.com”.The City Civil Court judge permitted the application for temporary restriction on the ground that the litigant was the former user of the trade name “sify’s.” The respondent filed an petition before the High Court, an interim stay of the civil judges judgement was approved. The appeal was eventually allowed by the High court. Consequently the order was challenged before the Supreme Court observed that the appellant was successful in fulfilling all the three ingredients of passing off. It was further apprehended that there is phonetic connection between the two names. The use of similar domain name may direct to a distraction of users, which could result from such users misguidedly accessing one domain name. Finally Supreme Court affirms the decision of the city civil court.

GREY AREAS:

a. There is no stipulation in the current or anticipated Information Technology Act in India to punish Cyber-squatters, at best, the domain can be taken back. Though there is no legal reparation under the IT Act, .IN registry has taken proactive steps to endow reparation to victim companies to dissuade squatters from further stealing domains. Most squatters however operate under semblance of ambiguous names.

b. Under NIXI (National Internet Exchange of India), the .IN Registry functions as an sovereign organization with principal liability for maintaining the .IN cc-TLD (country code top-level domain) and ensuring its operational steadiness, consistency, and safekeeping. It will put into practice the diverse policy of the new policy set out by the Government of India and its Ministry of Communications and Information Technology, Department of InformationTechnology.The Information technology Act be short of somewhere in respect of jurisdiction issues, Cyber crimes related to IPR, Cyber stalking, Cyber defamation etc.

c. Likewise, the Indian Trademark Act, 1999 and Copyright Act, 1957 are also silent on issues arising out of online Trademark and Copyright infringement. Though computer programmers are protected under the Copyright Act but it does not provide remedy for online software piracy.

d. IT Act 2000 was mainly to ensure lawful appreciation of e-commerce within India. Due to this most provisions are mainly fretful with establishing digital certification processes within thecountry. The IT Act has several flaws which have been barbed out by several experts. They are:

1.It is not clear how Cyber crimes affecting computers in India are committed from outside India using the Internet will be dealt with.

2.The Act does not have any provisions regarding domain names and resolving disputes on such names.

3.Many Cyber crimes are not defined in the Act such as Cyber denouncement, Cyber harassment and Cyber stalking.

4.Privacy and safeguard of personal data such as therapeutic records are not covered by the Act.

5.The Act does not deal with intellectual property rights and has no stipulation to punish persons or organizations sending unsoliciteds e-mail normally known as spam.

CONCLUSION

In view of the above discussions the following conclusions can be made: –

1. The periphery less nature of internet calls for a more encouraging relationships in other jurisdictions and close collaboration with the worldwide organizations

2. There is an enormous need for the society to be well-informed about the necessity of copyright fortification in all fronts to avoid any unlawful use and pilferage of the system.

3. The copyright law is the most compelling mechanism presently accessible for tackling I.P.R issues on the internet.

4. The scrutiny of copyright in Cyberspace reveal a mixed result of new opportunities and threats

Such coercion often overshadow the opportunities offered by the Cyberspace and inevitability arises for increasing regulations of Cyberspace to look after copyrights.

5. Lack of worldwide established principles relating to copyrights in Cyberspace gives abundant

room for conflicting domestic standards.

6. The following exceptions and precincts to the rights need to be reassessed

(i) Access controls ability to fit into place for fair use

(ii) Circumvention of access controls influence, significance and works secluded by copyright.

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

If you are interested in participating in the same, do let me know.

Do follow me on FacebookTwitter  Youtube and Instagram.

The copyright of this Article belongs exclusively to Ms. Aishwarya Sandeep. Reproduction of the same, without permission will amount to Copyright Infringement. Appropriate Legal Action under the Indian Laws will be taken.

If you would also like to contribute to my website, then do share your articles or poems at secondinnings.hr@gmail.com

In the year 2021, we wrote about 1000 Inspirational Women In India, in the year 2022, we would be featuring 5000 Start Up Stories.

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