With more people utilizing technology, knowledge and information are now freely shared across geographical boundaries. It contributed to global enlightment in business society, and other domains. It made it possible for people to communicate, exchange ideas and opinions, purchase goods, upload, download, and store information without being physically constrained. However, as technology advanced, so did the threat to cyber security. Cybercrime includes identity theft and infringement of intellectual property rights in addition to online fraud, cyber stalking, and phishing.

The original works produced by human minds are protected by intellectual property rights. Intellectual assets also known as intellectual properties comprise intangible property; it encompasses a variety of items such as symbols, literary, artistic and musical works, as well as discoveries and copyright. The phrases are acknowledged, along with the legal domains that correspond with them. The owners are bestowed with an all-inclusive entitlement to safeguard their intangible assets and derive advantages from them. The growing use of cyberspace has aided in the transmission storage and protection of intellectual property; however, cybercrimes have an impact on intellectual property law also, and securing ownership of intangible property is becoming more difficult. Cybercrime is on rise and includes linking, framing, cyber squatting, etc. The article will cover the challenges faced by the owners of intellectual property and laws available to deal with them in India.

COPYRIGHT INFRINGEMENT

What is a copyright?

Oxford English dictionary defines ‘copyright’ as an exclusive right given by law for a certain term of years to an author, composer, etc.(or his assignee) to print, publish and sell copies of his original work.[1]

Online use of copyright provides the owner the option to prohibit other from using replicating his work. Infringement in common term means violation of certain rights.Copyright infringement means using the data of the owner without his prior approval for reproduction, transmission of information and using it illegally.

Challenges:

1. Linking: a link is a connection between words, images or data objects to another. Linking is highlighted, underlined. Worldwide web helps people to link and sought information. Linking is of two types:
   1. Surface linking: If the homepage of website is linked, it is a surface link.
   1. Deep linking: If the link skips the homepage and goes directly to the internal page of the linked site, it is deep linking.

How linking affect copyrights

Linking affects the rights of the actual owner of the website as the linked site lose their revenue. The amount of revenue depends upon the number of person visiting the website. Linking reduces the number of people visit on the website. Deep linking can cause harm to the owner of the website as it helps a user to directly seek the required information without actually typing the URL of the website. Also there are high chances that people might feel that both the websites are linked and share the same information increasing the risk of cybercrime like fraud. The data can be used for illegal causes.

Case law: In Shetland times ltd vs. Dr. Jonathan Wills and Zet News Ltd., the defendant used deep linking technique to insert pages of Shetland times, by bypassing its home page, creating hyperlink of story head line of Shetland times, it was held to be an infringement of copyright under the British law and an injunction was issued for the same.[2]

• Caching: The process of copying original content and duplicating the same, making such cache accessible for temporary period to the users is known as caching. As per the Indian law copying must be in electronic form but electronic storage is also the medium making caching medium of copyright infringement.
• Framing: The web browsers allow the web authors to divide the webpage into ‘frames’. A frame is a window on a website which is controlled independently through which WebPages on another websites can be easily viewed. A developer of website can frame other web content below its navigation bar. This allows him to use creative content owned by another entity to sell banner ads on its website.[3]
• Plagiarism: Plagiarism refers to copying books, movies, music and films distributing it online or reproducing the same. It is has became easier due to technological advancement, to upload and download content without the authorization of the creator. Piracy has become a threat to the copyright. Archiving the copyrighted materials from websites links is becoming a common practice. The person who uploads such content is responsible for the infringement of copyright.
• Software piracy: software piracy refers to the unauthorized copying of computer software which is protected by Copyright Act of 1957.
  • Soft lifting: means sharing software a programme with an unauthorized person without a license to use it.
  • Software counterfeiting: this refers to production of fake copies of software that imitate original one and are available at cheaper cost than the original software.
  • Leasing: renting a copy of software to the user for a temporary use without the actual permission of the copyright owner, thus violating the agreement of software license.[4]
• In lining: it is a process of displaying a graphic file on one website that originates at another. Example linking of YouTube video link on a webpage.

TRADEMARK INFRIENGEMENT

Trademark: A trademark is a visual represented attached to goods for the purpose of indicating their trade origin. As per section 2(1) (zb) defines ‘trademark’ as a mark capable of being represented graphically and which is capable of distinguishing the good and service of one person from those of others and may include the shape of goods, their packaging and combination of colors.[5]

Trademark infringement in cyberspace: Trademark infringement arises generally in case of domain name. A domain name is the name that a website uses. It functions similarly to an address that users use to reach that specific website. When computers are identified using their IP addresses, which come in the form of various codes, the domain name is crucial. However because IP addresses include complicated numeric coding, simpler substitutes that are universally recognizable have been created. A domain is an option. It may consist of a word, symbol, or numeric combination. For example http://www.google.com

 It has been an old practice of the trademark holders to purchase domain names that closely matches their registered trademarks. For instance, a law firm that owns the registered trademark ‘legal eagles’ will likely choose a domain name like ‘www.legaleagle.com’ rather than ‘www.legalease.com’. The primary issue is that the domain names are assigned by Internet Corporation for Assigned Names and numbers on a ‘stand in line, basis which leads to a situation where ‘predatory domain names’ are assigned which are abusive towards the registered trademarks. As a result, certain domain names are created that are registered trademark, yet the owner of that domain name has no legitimate claim or interest in that trademark or lawful authority over the name of the trademark which creates dispute.

Need of trademark: it helps to identify and distinguish a product. To advertise the product and make its image in on the basis of public mind, it also increases the goodwill of the product and assures its quality.

Challenges :

1. Cyber squatting: Cyber squatting takes place when domain names are registered, sold or traded with the intention of gaining profit from someone else’s goodwill. It is punishable offence. In the case of Yahoo Inc. v. Akash Arora, the plaintiff was the registered owner of the domain name “yahoo.com”, was successful in getting an interim order prohibiting the defendants and their agents from offering goods or services on the Internet or in any other location under the domain name “yahooindia.com” or any other name that is confusingly similar to the plaintiff’s trademark.[6]
   1. Meta tagging: in order to improve the likelihood that a search engine would return a website, a Meta tag is added to the keyword field. The site may have nothing to do with the Meta tag added. It becomes a problem when companies add Meta tags that contains names or descriptions of other companies or business, it is considered as trademark infringement.
   1. Cyber parasite: it depicts a situation whereby use of the actual domain name produces incentives and profits. The strategy involves using a similar or wrongly spelled domain name which is similar to that of a famous trademark.
   1. Dilution: dilution happens when a trademark owner holds a trademark which is similar to a quiet famous trademark and uses it in such a way to dilute the distinctive quality of the famous trademark.
   1. Renewal squatting: usually a domain name is registered for a fixed period of time and if the owner does not apply for re registration then the domain name is available to be purchased by any other person. In such cases the cyber squatters can snatch up the domain name.

INTELLECTUAL PROPERTY INFRINGEMENT AND SOCIAL MEDIA

The use of social media has helped the world to come closer to communicate with each other without any barriers freely but it has also brought with it the risk of intellectual property safety. Any third person can easily misuse the trademark of a company to sell the products or create confusion among the public.

LAWS APPLICABLE IN PROTECTION OF INTELLECTUAL PROPERTY RIGHTS IN INDIA

Section 13 of the intellectual of the Copyright Act, 1957 states the works in which copyrights Subsists as per section 13(1) original literary, dramatic, musical and artistic work; cinematograph films and sound recording.[7]

Section 14 elaborates on the meaning of copyright. It states the rights of the copyright holders, a holder has right to reproduce, issue copies, perform his art in public, to translate, adapt, broadcast work, prevent others from unauthorized use of copyright work.[8]

• Civil remedies for infringement: In accordance with section 55 of the Copyright Act, the copyright owner is entitled to all civil remedies for copyright infringement, including injunctions, damages, accounts, and other remedies that may be granted by law. The court may order the seizure of copies that are infringing and their delivery to the copyright owner under Section 66. When instances of infringement and passing off occur, in case of the trademark, the owner can approach to the district court for grant of interlocutory injunction, anton pillar orders, damages and account of profits. In case of patent same civil remedies are available to the holder.[9]
• Criminal remedies: According to section 63 of the Copyright Act, anyone who willfully violates or encourages the violation of a work’s copyright is guilty of a crime, will be punishable with a fine of not less than fifty thousand rupees but not more than two lakh rupees, and term of imprisonment that will not be less than six months but may extend to three years.[10]

According to Section 63(b), anyone found to have intentionally used an infringing copy of a computer program on their computer faces a minimum sentence of seven days in jail and which may extend up to three years, and a minimum fine of fifty thousand rupees, which may increase up to two lakh rupees.[11]

As per section 103 and 104 of Trademark Act, 1999 any person who is found applying for false trademark, trademark description, for selling goods or providing services to which false trade mark or false trade description is applied is punishable with fine with a fine not less than fifty thousand rupees which may extend to rupees two lakh and imprisonment not less than six months but which may extend to 3 years. In case of subsequent conviction the punishment is not less than 1 year which may extend to 3 years and fine not less than 1 lakh rupees.[12]

• Administrative remedies: Administrative remedies consist of moving the registrar of copyrights to ban the import of infringing copies into India when the infringement is by the way of such importation and the delivery of the confiscated infringing copies to the owner of the copyright and seeking delivery.[13]

As per section 64 of the Copyright Act, any police officer not below the rank of sub inspector has power to seize infringing copies if he is satisfied that the infringement is done or likely to be done can seize copies of work or plates used for the work of infringement without an warrant As per section 74 of the Copyright Act the registrar has certain power similar to that of civil court and he can even pass order for payment of money.[14]

Section 62 of the Copyright Act states that every suit or civil proceeding which is relating to infringement of copyright or any other rights in the act, suit shall be instituted in the district court having jurisdiction. Section 29 of Trademark Act states that when a trademark is infringed and by whom a trademark is infringed. Section 75 of Trademark Act states when a certified mark is infringement.[15]

Opposing the registration of a deceptively similar trade mark when trade mark registry is in process of considering the grant of a trade of a trademark can protect the trade mark. The registry can also move for removal of a deceptively similar trademark, if registered.

• Section 91(1) of Trademark Act, 1999 provides for the provision of appeal to the High Court against the order or decision made by the registrar within three months from the date of passing of such order. Section 135 provides for relief in suits for infringement or passing off.[16]
• An intermediary can be held liable if it does not comply with the provisions of section 79 of the Information Technology Act 2000, which also requires certain due diligence to be undertaken, as provided for in the Consumer Protection (E- Commerce) Rules 2020 and the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021, which superseded the Intermediary Guidelines Rules 2011.[17]
• The 2012 amendments to the Copyright Act introduced certain provisions that are specifically relevant to copyright infringement and the internet. According to section 52(1) (c), the person in charge of digitally storing an infringing copy of a work shall, upon receiving written notification from the owner of the copyrighted work alleging that the act of temporary or incidental storage constitutes a copyright infringement, refrain from facilitating access to the infringing copy of the work for a period of twenty-one days. Access may be resumed at the end of the 21-day period if the person in charge has not received an order from a competent court instructing them to stop granting access.[18]
• Jurisdiction issue: Since there are no geographical restrictions, cybercrime can be committed from anywhere in the world. The Information Technology Act, 2000, specifically section 75, pertains to transgressions committed outside of India provided that the conduct involved a computer, computer system, or computer network situated in India. Intellectual property owners would greatly benefit from judicial activism combined with sound jurisprudence, as Indian courts are equipped to handle cases involving cyberspace intellectual property infringement. [19]

CONCLUSION

Future developments in the domain of cyberspace will bring with it an increased risk of cybercrime in a number of areas, including the infringement of intellectual property rights. When it comes to issues like copyright infringement and trademark infringement in cyberspace, the law seems insufficient to deal with it. To protect the rights of owners of intellectual property rights, laws and regulations governing such cybercrimes must be created immediately.

 SUGGESTION

There is a lot of need of improvement to deal with cyber issues. Central and State government must take concrete to curb such issues. To create a separate system of mechanism to curb the evil practices in cyberspace. The owners of the intellectual property rights must be made aware of their rights and steps to be taken for the safety of their rights. A separate legislation must be created to safeguard intellectual property.

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[1] Oxford English dictionary, available at   http://www.oed.com (last visited: 10.2.2024)

[2]  Shetland Times Ltd v Dr Jonathan Wills and Zet News Ltd,(1997) FSR 604, 1997 SLT 669, available at  https://blog.ipleaders.in/intellectual-property-rights-law-in-cyberspace/ (last edited:22.11.2021)

[3] What can I do to protect my trademark in cyberspace: an overview, available at

https://blog.ipleaders.in/what-can-i-do-to-protect-my-trademark-in-cyberspace-an-overview/ (last edited: 24.09.2021)

[4] ibid

[5] What can I do to protect my trademark in cyberspace: an overview, available at

https://blog.ipleaders.in/what-can-i-do-to-protect-my-trademark-in-cyberspace-an-overview/ (last edited: 24.09.2021)

[6] Shetland Times Ltd v Dr Jonathan Wills and Zet News Ltd ,(1997) FSR 604, 1997 SLT 669, available at https://www.slideshare.net/himanshuarora90/trademark-issues-in-cyberspace (last edited: 12.10.2012)

Mr. Atul Satwa Jaybhaye,Cyber law and IPR issues: the Indian perspective, Bharati law review, April-June, 2016

[7]  Article 13 of Copyright Act, 1957

[8]  Article 14 Of Copyright Act, 1957

[9]  Dr. B L Wadehra (ed.), Law relating to Intellectual Property, pg no. 176 and 342 ( Universal Law Publishing Co.Pvt.Ltd, Delhi, 5^th Edition)

[10] Article 63 of Copyright Act, 1957

[11]  Section 63(b) of Copyright Act, 1957

[12]  Section 103 and section 104 of the Trademark Act, 1999

[13] Dr. B L Wadehra (ed.), Law relating to Intellectual Property, pg no. 176 and 342 ( Universal Law Publishing Co.Pvt.Ltd, Delhi, 5^th Edition)

[14]  Section 64 and 74 of the Copyright Act, 1957

[15] Section 62 of the Copyright Act, 1957, section 29 and 75 of Trademark Act,1999

[16] section 91(1), section 135 of the Trademark Act, 1999

[17] In brief: copyright infringement in india, https://www.lexology.com/library/detail.aspx?g=6526199f-85cd-4291-989d-155a7dc50272 (last edited:31.05.2023)

[18] ibid

[19] Intellectual property rights law in cyberspace, https://blog.ipleaders.in/intellectual-property-rights-law-in-cyberspace/

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Author: Sejal Wareshi

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