UNIT – II: Intellectual Property Rights in Cyberspace

Sonal R.

21/08/2023

1. Concept of Property in Cyberspace

In common use, property is simply ‘one’s own thing’ and refers to the relationship between
individuals and the objects which they see as being their own to dispense with as they see fit.

Property is often conceptualized as the rights of ‘ownership’ as defined in law.

Online content needs to be protected and hence Intellectual Property Rights and Cyber laws cannot
be separated.

The term intellectual property reflects the idea that this subject matter is the product of the mind
or the intellect, and that intellectual property rights may be protected by law in the same way as
any other form of property.

Intellectual property laws are territorial such that the registration or enforcement of IP rights must
be pursued separately in each jurisdiction of interest.

Kinds of tools of protection that come under the umbrella term ‘intellectual property’

Important among these are the following:

— Patents

— Trademarks

— Geographical Indications

— Layout Designs of Integrated Circuits

— Trade Secrets

— Copyrights

— Industrial Designs

3. Interface with Copyright Law, Patent Law, Trademarks & Domain Names Related issues

Interface with Copyright Law, Patent Law, Trademarks & Domain Names Related issues

Copyrights
Copyright is a right given by law to the creators of literary, dramatic, musical and artistic works and
producers of cinematograph films and sound recordings to do or authorize the doing of certain acts
with regard to their creations.

It is a kind of protection against unauthorized use or misuse of a work, but for a limited duration.

Elements in the copyright law are fixation, originality, and expression.

The protection domain of the copyright laws

Approved US Digital Millennium Copyright Act (DMCA)

According to Matt Rosenberg, copyright merely “subsits,” meaning that every person who produces
an original work on the Internet automatically has a copyright for that work in the extended
definition of digitization. As per the copyright law, therefore, prior permission must be sought in
order to copy, distribute, edit, manipulate, and resell the work.

Patents

A patent is an exclusive right granted for an invention, which is a product or a process that provides
in general, new doing something, or offer a new technical solution to a problem.

The patent law does not directly affect much of the contents of cyberspace. The patent law only
affects original and nonobvious inventions.

TRADEMARKS

A trademark is a distinctive sign of some kind which is used by a business to uniquely identify itself
and its products and services to consumers, and to distinguish the business and its products or
services from those of other businesses.

Conventionally, a trademark comprises a name, word, phrase, logo, symbol, design, image, or a
combination of two or more of these elements.

The essential function of a trademark is to exclusively identify the commercial source or origin of
products or services thereby facilitating identification of products and services which meet the
expectations of consumers as to quality and other characteristics.

TRADEMARKS

Trademark rights may be used to prevent others from using a confusingly similar mark, but not to
prevent others from making the same goods or from selling the same goods or services under a
clearly different mark.

Trademarks which are used in interstate or foreign commerce may be registered with the Patent and
Trademark Office.

In the United States trademark ownership does not require registration unless it is part of
“commerce that Congress may regulate,”
Trademarks are governed by both state and federal law. Originally, state common law provided the
main source of protection for trademarks. However, in the late 1800s, the U.S. Congress enacted the
first federal trademark law.

Trade Secrets

Trade secrets is compilation of information which is not generally known. The expansion of Internet
use, many companies are becoming heavy users because there are many advantages, especially for
research personnel. Many Internet users are in a scavenger hunt for leaking information.

Two types of information can leak in cyberspace:

(1) information on devices, designs, processes, software designs, and many other
industrial processes

(2) information on individual employee’s life possessions employee accumulated

knowledge and experience.

Trade Secrets

On cyberspace, Companies not only obtain vital and essential information free, they also obtain
other resources free or almost free.

For example, companies can get free or very inexpensive consultancy in cyberspace that would have
required them to hire an expert for a lot more money. So that's why, the Internet has been mainly
used by researchers in both educational and research institutions exchanging information and
research data.

Domain Names Related issues

Domain names is primarily used to identify one computer from the millions of others connected to
the internet enabling users to send e-mail, to access web pages, to transfer files.

No two people can have the same telephone number and No two organizations can have the same
domain name .

An IP address consists of multiple levels identified by both, numbers and names. The number
consists of four parts separated by periods (dots).

Domain Names

— Originally the purpose of Internet domain names was to locate a web site on the Internet.

— But in today’s world the importance of domain names has gone much beyond web site location.

— They are used to identify the goods and services which a particular company is offering, be it
online or offline. So, domain names serve the purpose of trademarks.

TYPES OF DOMAIN NAMES

— Every domain name ends in a top-level domain (TLD) name.

— TLD is the last part of a domain name; that is, the letters which follow the final ‘dot’ of any
domain name.

generic Top-level Domain (gTLD)

— A gTLD is a top-level domain used by a particular class of organization.

— These are three or more letters long, and are named for the type of organization that they
represent (for example, .com for commercial organizations, .int for international organizations).

— But some of these gTLDs have become unrestricted, that means they no longer represent any
particular type of organization and anyone could get a domain name under it.

— .com - for commercial organizations, but unrestricted

— .coop - for cooperatives

— .edu - for educational establishments

— .gov - for governments and their agencies in the U.S.A.

— .info - for informational sites, but unrestricted

— .int - for international organizations established by treaty

— .jobs - for employment-related sites

— .name - for families and individuals

— .net - originally for network infrastructures, now unrestricted

— .org - originally for organizations not clearly falling within the other gTLDs,

country code Top Level Domains (ccTLD)

— ccTLD is used and reserved for a country.

— These are two letters long, and most of them correspond to the ISO 3166-1 standard for country
codes.

— The administration of a ccTLD is left to the specific country concerned and thus each ccTLD policy
setting out the rules for allocating domains is distinct from the other.

ISPs (Internet Service Provider) AND THEIR ROLE IN COMMUNICATION ON THE INTERNET:

— ISP is an entity that connects people to the Internet and provides other allied services such as
Web site building and hosting.

— An ISP has the equipment and the telecommunication line access required to have a point of
presence on the Internet for the geographic area served.
— Various kinds of intermediaries are involved in delivering content online to end-users, as making a
work available over the Internet will involve a chain of intermediaries.

ISP Liability under the Information Technology Act, 2000

— In India the provisions relating to the ISPs are specifically legislated in the IT Act, 2000 where an
Internet Service Provider is referred to as Network service provider and Explanation (a) to s. 79
defines it as:

— “Network service provider” means an intermediary. Intermediary again has been defined under
section 2(w) as:

— “Intermediary” with respect to any particular electronic message means any person who on
behalf of another person receives stores or transmits that message or provides any service with
respect to that message.

Digital rights management (DRM)

— Digital rights management (DRM) is a systematic approach to copyright protection for digital
media.

— The purpose of DRM is to prevent unauthorized redistribution of digital media and restrict the
ways consumers can copy content they've purchased.

— DRM products were developed in response to the rapid increase in online piracy of commercially
marketed material, which proliferated through the widespread use of peer-to-peer file exchange
programs.

— Typically DRM is implemented by embedding code that prevents copying, specifies a time period
in which the content can be accessed or limits the number of devices the media can be installed on.

Rapid changes in cyberspace have made most intellectual property laws obsolete (outdated)

Cyberspace not like other field, it is changing so fast. Everyday new technology is coming to
cyberspace, new service and also new users with new intellectual properties.

When a service or intellectual property introduced into cyberspace we have to make laws for it.

The purpose is to protect that properties for their owner. But due the rapid changes in cyberspace
the existing laws become obsolete, because new people do a new thing to violate the laws and
somehow that previous intellectual property laws not suitable anymore.

Therefore the new laws have to be made to keep track of the rapid changes in cyberspace.

Best ways to deal with property issues on a changing landscape of cyberspace

Copyright is a legal concept, enacted by most governments, giving the creator of an original.

With DMCA (Digital Millennium Copyright Act) we can protect a copyright to prevent piracy, because
DMCA served to keep the authenticity of the digital content.
The punishment from DMCA offense is removal the web from cyberspace.

LINKING:

— The interactive feature of the Internet’s most popular information access tool, the World Wide
Web, to hyperlink defines its very culture distinguishing it from any other communications medium.

— On the Internet, a link is a selectable connection from one word, picture, or information object to
another. Links usually appear as highlighted, underlined, otherwise prominent text or picture that
can be selected by the user, resulting in the immediate delivery and view of another file.

Linking is of two types:

— Surface linking: When the home page of a site is linked it is the case of surface linking.

— Deep linking: When a link bypasses the home page and goes straight to an internal page within
the linked site it is the case of deep linking.

INLINING:

— Inlining or ‘In-line linking’ enables a Web page to summon different elements from diverse pages
or servers to create a new Web page.

— Instead of copying the elements to the composite page, the elements are linked in by “pulling in”
graphic or image files from another site and displaying on the composite Web page.

— Thus, the composite page would consist of a series of links to other sites and servers.

— While browsing the composite page, the page directs the browser to get the pictures, graphics
etc. from the original sources

Inlining and Indian Law:

— As in linking one has to turn to section 51 read with section 14 of the Copyright Act, 1957 to test
the legality of inlining.

— By virtue of section 14 and 51, reproducing any copyrighted work, issuing copies of the work to
the public or communicating the work to the public could amount to copyright violation.

— The person who employs an inline link on his site is not causing any reproduction of the
copyrighted content

P2P NETWORKING

— Peer-to-peer (P2P) is defined as two or more computers connected by software which enables
the connected computers to transit files or data to other connected computers.

— In recent usage, P2P has come to describe applications in which users can use the Internet to
exchange files with each other directly.

— The P2P connection means that it’s a direct link, the file is being directly transferred from one
computer to the other, it is not going through any mediating server.
— A P2P network does not have the notion of clients or servers, but only equal peer nodes that
simultaneously function as both “clients” and “servers” to the other nodes on the network.

SEARCH ENGINES AND THEIR ABUSE:

— Information and Internet are synonyms. It is difficult to conceive the gigantic quantum of
information present on the Internet. It runs in many billions of pages and still growing.

— According to some estimates the Internet is doubling its size every four months and with this
increase in size comes a proportional increase in information.

— Search engines have come to acquire a unique and important position on the overall Internet
system.

— They have become the presenters of information that is provided by others.

What are Search Engines?

— A web search engine is a software system that is designed to search for information on the World
Wide Web.

— The search results are generally presented in a line of results often referred to as search engine
results pages (SERPs).

— The information may be a mix of web pages, images, and other types of files.

— Some search engines also mine data available in databases or open directories. Unlike web
directories, which are maintained only by human editors, search engines also maintain real-time
information by running an algorithm on a web crawler.

— Hidden or Invisible Text One way of fooling a search engine is to match certain keywords by
making them the same colour as the background or by using a tiny font size or hiding them within
the HTML code such as “no frame” sections.

— Keyword Stuffing Keyword stuffing is considered to be an unethical Search engine optimization

technique. Keyword stuffing occurs when a web page is loaded with keywords in the content.

— Meta Tag Stuffing A meta tag is a coding statement in the Hypertext Markup Language (HTML)
that describes some aspect of the contents of a Web page

— Cloaking: Cloaking is another search engine optimization technique in which the content
presented to the search engine crawler is different from that presented to the users’ browser.

2. Implication on Intellectual Property Rights – International & National Legal Preparedness

Implication on Intellectual Property Rights – International & National Legal Preparedness

NON ORIGINAL DATABASES:

Member states of WIPO have been discussing the possible introduction of international protection
of non-original databases which presently do not qualify for protection under copyright law.
The originality requirement that a database must constitute an intellectual creation by reason of the
selection or arrangement of its contents in order to enjoy copyright protection means that some
databases are not protected under copyright even if substantial investments have been made to
produce them.

PROTECTION OF DATABASES THROUGH INTELLECTUAL PROPERTY LAWS:

The WIPO Diplomatic Conference on Certain Copyright and Neighboring Rights Questions held in
December 1996, which adopted the WIPO Internet Treaties, had among its documents a Basic
Proposal for the Substantive Provisions of the Treaty on Intellectual Property in Respect of
Databases to be considered by the Diplomatic Conference.

Although agreement was not reached, the Conference adopted a Recommendation Concerning
Databases.

In 2002, at the request of the Standing Committee on Copyright and Related Rights (SCCR), the WIPO
Secretariat commissioned six studies on the economic impact of international database protection
on developing countries and countries in transition, and prepared a summary on existing legislation
concerning intellectual property (IP) in non-original databases.

These studies were discussed by the SCCR.

International Regime of Intellectual Property Laws:

Understanding the legal regime that governs intellectual property and the protection of this
intellectual property. This regime is what acts the base for any trade, be it international or national,
of intellectual property.

a) The Paris Convention on the Protection of Industrial Property-

This convention was concluded in 1883. It was the first international instrument to cover patents on
industrial innovations.

b)The Berne Convention for the Protection of Literary and Artistic Works-

Three years after the Paris Convention, the Berne convention was established to cover copyright,

c) Madrid Agreement Concerning the International Registration of Marks

Having dealt with some form of international protection for patents as well as copyright, there was
felt a need for the protection of trademarks at the global level as well. Accordingly, the Madrid
Agreement dealing with trademarks was concluded five years after the Berne Convention.

These three agreements even today can be said to cover the major principles of protection of the
principal categories of intellectual property.

d) The Bureaux Internationaux Réunis pour la Protection de la Propriété Intellectuelle (BIRPI)

This was a larger umbrella organization, which encompassed within itself the three Conventions as
mentioned above. Eventually In the year 1893; in the post-World War II era this evolved into World
Intellectual Property Organization (WIPO), based in Geneva.

e) World Intellectual Property Organization (WIPO)

WIPO is the modern day international body dealing with the regulation of intellectual property. It
became a formal part of the United Nations system in 1974.

f) TRIPS Agreement

The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is an international

legal agreement between all the member nations of the World Trade Organization.

When it comes to trade and intellectual property, this is the most relevant and comprehensive
agreement. It is to date the most comprehensive multilateral agreement on intellectual
property which can be gauged by the varied intellectual property by it Copyright, trademarks,
geographical indications, industrial designs; patents, layout-designs of integrated circuits; and
undisclosed information which covers trade secrets and test data.

Scope of intellectual property protection as a trade issue within various industries-

Computer software: The illegal piracy and distribution of computer software (primarily an
intellectual property) worth crores of rupees is a major issue that is threatening the required heavy
investment. Without this heavy investment, there is hardly any innovation.

The Pharmaceutical industry: This is again another industry which also must carry high front-end
R&D expenses. However, there are so many countries with such ineffective drug protection that it
becomes almost impossible to enter and sustain in those markets.

Publication, production etc.: Inadequate protection of copyright rights leads to a definite chilling
effect on publishers, producers, composers, and authors who see their material infringed without
repercussions.

Some Latest Issues in IPR :-

Cyber Squatting (Domain Squatting) :-

Using a domain name with bad faith intent to profit from the goodwill of a trademark belonging to
someone else. The cybersquatter then offers to sell the domain to the person or company who owns
a trademark contained within the name at an inflated price.

1. Yahoo! Inc. v. Akash Arora and Anothers (1999)

2. www.arunjaitley.com (2009) (now non functional)

Cyber Squatting (Domain Squatting) :-

Cybersquatting is the pre-emptive registration

of trademarks by third parties as domain names.

Cybersquatters exploit the first-come, first-served

nature of the domain name registration system to

register names of trademarks, famous people or businesses with which they have no connection.