Intellectual Property in Cyberspace
Intellectual Property (IP) refers to the creation of the mind. It refers to assets that may or may not be physical, such as literature, music, artistic works, ideas, symbols, logos etc. In the context of cyberspace, intellectual property refers to the digital assets that originally belong to an individual or an organization that cannot be used by anyone without their consent and are legally protected if violated.
When dealing with Intellectual Property Law, it has the following categories:
- Copyrights
- Trademark
- Trade secrets
- Patent
- Industrial Designs
- Geographical indications
With the expansion of technology, cyberspace has come within reach of every individual. This fact led to the emergence of cyberspace as a business platform and hence increases pressure on Intellectual Property. Nowadays, cyber crimes do not solely limit themselves to fraud, cyber bullying, identity thefts but also an infringement of copyrights and trademarks of various businesses and other organizations. Online content needs to be protected and hence Intellectual Property Rights and Cyber laws cannot be separated.
In cyberspace, sometimes one person makes a profit by using another person's creation without the owner's consent. This is a violation of privacy, and it is protected by IPR. We have certain laws to avoid violation of Intellectual Property Rights in cyberspace and when it is violated, then additionally we have several remedies in law.
In the context of cyberspace, two major IP issues are : Copyright Infringement and Trademark Concerns.
Copyright Infringement in Cyberspace
Copyright protection is given to the owner of any published artistic, literary, or scientific work over his work to prohibit everyone else from exploiting that work in his name and thereby gain profit from it.
When these proprietary creations are utilized by anyone without the permission of the owner, it leads to copyright infringement. If copies of any software are made and sold on the internet without the permission of the owner or even copying the content from any online source, these all are examples of copyright infringement. The most common cases of copyright infringement includes:
1. Linking
It permits a Website user to visit another location on the Internet. By simply clicking on a word or image on one Web page, the user can view another Web page elsewhere in the world, or simply elsewhere on the same server as the original page.
Linking damages the rights or interests of the owner of the Linked webpage. It may create the supposition that the two linked sites are the same and promote the same idea. In this way, the linked sites can lose their income as it is often equal to the number of persons who visit their page.
2. Software Piracy
Software piracy refers to the act of stealing software that is lawfully shielded. This stealing comprises various actions like copying, spreading, altering, or trading the software. It also comes under the Indian copyright act.
An example of software piracy is downloading a replica of Microsoft Word from any website other than Microsoft to avoid paying for it as it is a paid software. Piracy can be of 3 types:
- Soft lifting
- Software Counterfeiting
- Uploading-Downloading.
Soft Lifting: Soft lifting refers to the illegal practice of copying or using software on more computers than the software license allows. This typically happens when a company buys a single copy of a software program but installs it on multiple computers, violating the licensing terms.
Software Counterfeiting: Software counterfeiting involves the illegal reproduction, distribution, or sale of software that is made to look like the original. This often includes pirated versions of software being sold as genuine, deceiving consumers and depriving software developers of revenue.
Uploading-Downloading: Uploading and downloading refer to the processes of transferring files from one system to another over the internet. In a cyber context, these terms are often associated with the illegal exchange of copyrighted content, software, or sensitive data, which can lead to data breaches, piracy, or intellectual property theft.
Trademark Issues in Cyberspace
Trademark means a mark capable of being depicted visually and which may distinguish the products or services of one person from those of others and will embody the form of products, their packaging, and combination of colors. A registered service mark represents a service. Trademark infringement refers to the unlawful use of a trademark or service mark which can cause ambiguity, fraud, or confusion about the actual company a product or service came from. Trademark owners can take the help of the law if they believe their marks are being infringed.
These are some common trademark issues in the context of cyberspace:
Cybersquatting
Cybersquatting means unauthorized registration and use of Internet domain names that are similar to any business's trademarks, service marks, or company names with the approach of making money off of a well-known brand, business name, or individual name. The offending party shall register, sell, or use in any other way an unregistered internet domain that bears a protected brand or service mark. Using the goodwill of customers to your advantage is the aim of this action.
For example, let us consider 'Xyze' is a famous company. A cybersquatter could buy 'xyz.com', and use it to confuse the users and take advantage of the brand equity.
When more than one individual believes that they have the right to register a specific domain name, then this can lead to a Domain Name Dispute. It arises when a registered trademark is registered by another individual or organization who is not the owner of a trademark that is registered.
Branding on Websites
Using a trademark without permission on websites, social media profiles, or online marketplaces, leading to potential confusion about the origin of goods or services.
Copyright Laws
Copyright laws in cyberspace protect the rights of creators over their original works, ensuring they are not exploited without permission. In the digital world, copyright is particularly crucial due to the ease of reproducing and distributing digital content. Here are the primary copyright laws and regulations in cyberspace:
Digital Millennium Copyright Act (DMCA, 1998)
The DMCA is designed to combat copyright infringement on the internet by criminalizing the unauthorized distribution of copyrighted material, particularly digital works. It also provides a "safe harbor" provision for online service providers, protecting them from liability if they act to remove infringing content when notified.
It covers a broad range of digital content, including text, images, videos, software, and music shared online. The law allows copyright holders to send take-down notices to websites or internet platforms hosting their copyrighted content without authorization.
The WIPO Copyright Treaty (WCT, 1996)
Administered by the World Intellectual Property Organization (WIPO), the WCT ensures the protection of authors' rights over their works, even in the digital environment. It extends copyright protections to digital and internet-based media.
It provides copyright holders with exclusive rights to their works in the digital environment, including the right to control how their works are used online, ensuring the protection of digital content globally.
The World Intellectual Property Organization (WIPO) is part of the United Nations and works to protect IP rights globally. It has 193 member countries and promotes a balanced IP system worldwide.
EU Copyright Directive (2001/29/EC)
This directive harmonizes copyright laws across European Union member states, providing specific protections for digital content in the online space, including the rights of performers, authors, and broadcasters.
It outlines the responsibility of online platforms to monitor and act against unauthorized distribution of copyrighted content.
Trademark Laws
Trademark laws are vital in protecting brands, logos, and identities in cyberspace. With the vastness of the internet, unauthorized use of trademarks has become a prevalent issue. Here’s how trademark laws work:
Uniform Domain Name Dispute Resolution Policy (UDRP)
Administered by the Internet Corporation for Assigned Names and Numbers (ICANN), the UDRP allows trademark holders to resolve disputes over domain names that infringe upon their marks.
The policy provides a quick and cost-effective alternative to litigation, helping businesses protect their brand and online presence from misuse and confusion caused by domain names that are similar or identical to their registered trademarks.
The Lanham Act (1946) – United States
The Lanham Act provides federal protection for trademarks used in commerce, ensuring that businesses can prevent others from using confusingly similar marks that could deceive consumers. It is fundamental in protecting online brands.
In cyberspace, the act helps prevent the use of domain names or social media handles that infringe on established trademarks, including the rise of "cybersquatting," where individuals buy domain names containing popular trademarks and sell them for profit.
EU Trademark Directive
The European Union’s Trademark Directive ensures that businesses can prevent the unauthorized use of their trademarks, providing a legal framework for online brand protection.
It includes provisions to address the unauthorized use of trademarks in domain names, advertisements, and on e-commerce platforms within the EU, preventing trademark infringement in the digital landscape.
| Type of Intellectual Property | Law/Policy | Purpose |
|---|---|---|
| Copyright | Digital Millennium Copyright Act (DMCA, 1998) | Criminalizes the unauthorized distribution of copyrighted material online and offers a "safe harbor" provision for internet service providers. |
| Copyright | The WIPO Copyright Treaty (WCT, 1996) | Ensures protection of authors' rights in the digital space globally. |
| Copyright | EU Copyright Directive (2001/29/EC) | Harmonizes copyright laws across the EU, providing digital content protection. |
| Trademark | The Lanham Act (1946) | Federal law that provides trademark protection in commerce, preventing consumer confusion. |
| Trademark | Uniform Domain Name Dispute Resolution Policy (UDRP) | Provides a fast, cost-effective method for resolving disputes over domain names that infringe trademarks. |
| Trademark | EU Trademark Directive | Legal framework ensuring that trademarks are protected and that businesses can prevent unauthorized use in the EU. |
Conclusion
With the growth of Cyberspace and technology advancements, copyright and trademarks are not limited to the usual intellectual property alone but have spread to intellectual property rights over the internet.
Cyberspace is becoming a hub for intellectual property rights infringement. Several practices by the cyber site operators resulted in the violation of intellectual property rights and various other rights of other website operators. It has become crucial that people are aware of the illegal usage of their websites and webpages.
International conventions and treaties have provided various laws to protect infringement of IPRs online which are helping e-commerce and e-businesses to grow. However, the Information technology Act does not provide any provisions in respect of cybercrimes related to IPR, cyberstalking, cyber defamation, etc.
Also, the Indian Trademark Act, 1999 and Copyright Act, 1957 are silent on issues on online Trademark and Copyright infringement. Though computer programs are protected under the Copyright Act, 1957, it does not provide remedies for cyberpiracy.
