CYBER LAW

CES-2

Assignment: Intellectual Property In

Cyberspace
Submitted To: Mrs. Divya Singhal
Submitted By: Pranav Mehra {0201BBL002}
Introduction:-
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. Scholars in the social sciences frequently
conceive of property as a ‘bundle of rights and obligations’.
They stress that property is not a relationship between
people and things, but a relationship between people with
regard to things. Property is often conceptualized as the
rights of ‘ownership’ as defined in law. Private property is
that which belongs to an individual; public property is that
which belongs to a community collectively or a State.
Property is usually thought of in terms of a bundle of rights
as defined and protected by the sovereign. Traditionally,
that bundle of rights includes:
 control use of the property
 benefit from the property (e. g.: mining rights and
rent)
 transfer or selling of the property
 exclude others from the property

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 at
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. However, these
laws are becoming increasingly harmonised through the
effects of international treaties such as the Berne
Convention, Paris Convention and WTO Agreement on
TradeRelated Aspects of Intellectual Property Rights.
Intellectual property laws confer a bundle of exclusive
rights in relation to the particular form or manner in which
ideas or information are expressed or manifested, and not
in relation to the ideas or concepts themselves. The term
“intellectual property” denotes the specific legal rights
which authors, inventors and other IP holders may hold and
exercise, and not the intellectual work itself. Intellectual
property laws are designed to protect different forms of
intangible subject matter, although in some cases there is
a degree of overlap. Like other forms of property,
intellectual property (or rather the exclusive rights which
subsist in the IP) can be transferred or licensed to third
parties. There are various 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

Objectives:-
After reading this unit, you should be able to:
 explain the term intellectual property
 describe the basic concept of copyright and the rights
included in the term copyright
 explain infringement of copyright and what are the
remedies
 explain the concept of trademark the rights of
trademark and remedies for their search
 describe the challenges faced by IPR in cyberspace.

Copyright:-
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.
Generally the rights include the rights of authorship,
reproduction, distribution, communication to the public,
broadcasting, adaptation and translation. The exact
nomenclature and scope of the rights may vary from
country to country and from a class of work to another
class of work. However, international treaties such as the
Berne Convention for the protection of Literary and Artistic
Works and the Agreement on Trade Related Aspects of
Intellectual Property Rights have brought in some kind of
harmonisation in these rights. In India, copyright is
governed by the Copyright Act, 1957, the Copyright Rules,
1958 and the International Copyright Order, 1999. The
Copyright Act provides the basic law so far as copyrights
are concerned, the Copyright Rules contain the rules and
regulations as well as various procedures and the
International Copyright Order extends copyright protection
to works of nationals of specified foreign countries. The
Copyright Act classifies the works in which copyright
subsists in India in to the following three classes:
(a) literary, dramatic, musical and artistic works
(b) cinematograph films
(c) sound recordings.

The scope of ‘literary work’ includes any “work which is

expressed in print or writing, irrespective of the question
whether the quality or style is high”. It also includes
computer programs and computer databases. Dramatic
work includes any piece for recitation, choreographic work
or entertainment in dumb show, the scenic arrangement or
acting, form of which is fixed in writing or otherwise but
does not include a cinematograph film. Musical work
means a work consisting of music and includes any
graphical notation of such work but does not include any
words or any action intended to be sung, spoken or
performed with the music. Artistic work means a painting, a
sculpture, a drawing (including a diagram, map, chart or
plan), an engraving or a photograph, whether or not any
such work possesses artistic quality; a work of architecture;
and any other work of artistic craftsmanship. The Copyright
Act defines cinematograph film as “any work of visual
recording on any medium produced through a process from
which a moving image may be produced by any means
and, includes a sound recording accompanying such visual
recording”. Sound recording (phonogram) is a recording of
sounds from which sounds can be produced regardless of
the medium on which such recording is made or the
method by which the sounds are produced.

 Rights Included in the term ‘Copyright’ :

Copyright is a bundle of rights and this bundle can be
broadly classified into two categories, viz. economic
rights and moral rights. Economic rights are so called
because “they imply as a rule that within the limitations
set by the copyright law the owner of the copyright may
make all public use of the work conditional on payment
of remuneration”. These rights enable the copyright
owner to reap economic returns for his work. The major
economic rights available in the Indian copyright Act are
the following:
(a) Right of Reproduction
(b) Right to Issue Copies of a Work
(c) Rights of Public Performance
(d) Right of Communication to the Public
(e) Adaptation Right
(f) Translation Right
Right of reproduction is the most fundamental of all
economic rights. The right envisages that copyright
owner has the exclusive right to authorize the making of
one or more copies of a work or of a substantial part of it
in any material form, including sound and visual
recording. The most common kind of reproduction is
printing an edition of a book. Storing of a work in any
medium by electronic means is also reproduction. The
Copyright Act gives the right of reproduction in all
classes of works. Moral Rights are generally provided
with a view to assert the authorship on a work and also
to uphold the right of integrity. The Indian Copyright Act
provides this as special rights of authors to claim
authorship of the work and to restrain or claim damages
in respect of any distortion, mutilation, modification or
other act in relation to the said work which is done
before the expiration of the term of copyright if such
distortion, mutilation, modification or other act would be
prejudicial to his honour or reputation. Moral rights are
independent of the economic rights and remain with the
author even after he has transferred his economic rights.
In the era of digital technologies, moral rights,
particularly right of integrity, are very necessary to
safeguard against misuse and distortion of an author’s
work. Copyright, being a property right, can be
transferred or assigned to another person. It can also be
inherited during the time it exists. Without transferring
or assigning, a copyright owner can license specified
uses by others.

 Infringement of Copyright and Remedies

Thereof:
Any copying or duplication, adaptation, translation,
public performance, communication to the public or
broadcast done without the authorization of the
copyright owner, or even where any work has been
licensed or assigned, any violation of the conditions of
the licence or assignment constitutes copyright
infringement. Any import of infringing copies also
constitutes copyright infringement. Even such copies
made outside India cannot be imported into India without
infringing copyright where such copies, if made in India,
would infringe copyright, even if it may not be an
infringement in the country of origin. Since copyright is a
proprietary right, the owner has to administer his own
rights. The Copyright Act provides for collective
administration of rights through registered copyright
societies. These societies have to be formed voluntarily
by the copyright owners. Only the owner of copyright or
the society who have the rights can institute civil and
criminal proceedings against infringement of his works.
Civil remedies include injunction, and damages.
Copyright infringement is also a cognizable offence.
Copyright infringement is punishable with imprisonment
for a term ranging from six months to three years and
with a fine ranging from Rs. 50,000 to Rs. Two lakh.
District Courts have been given jurisdiction to try the
suits relating to copyright violation within the vicinity of
which the owner of the copyright resides or carries on
business.
 Limitations/Exceptions to Copyright:
The rights granted by copyright are exclusive in nature.
This exclusivity is sometimes criticised as monopoly in
favour of the right owners. Therefore, in order to balance
these opposing private and public interests the
legislature provides the remedy in the form of drawing
limitations/exceptions to copyright. This is achieved by
two means; firstly, limiting the duration in which a work
enjoys copyright protection, and secondly, allowing
certain uses without specific authorization by the owner
of copyrights, known as fair use provisions in copyright
parlance. Copyright is an intellectual property right and
like all other intellectual property rights it is for a limited
duration. This limitation emanates from the basic
concept of intellectual property right that while creators
of intellectual property have the right to control the
reproduction and other uses of their works, they being
essential elements in the scientific and cultural progress
of humanity, the society has the right to access and
share the same so that social and cultural life of
humanity gets enriched. While the Berne Convention
provides for a minimum period of protection which is life
term of the author plus 50 years thereafter, national
governments are free to provide a longer term of
protection. In India, original literary, dramatic, musical
and artistic works enjoy copyright protection for the
lifetime of the author plus 60 years if they are published
within the lifetime of the author. Many types of
exploitation of a copyrighted work which are for social
purposes such as education, religious ceremonies, and
so on are exempted from the operation of the rights
granted in the Act. For example, playing music at
religious ceremonies, including marriage processions
and marriage festivities, official functions of central and
state governments and local bodies will not be affected
by copyright. This is done in keeping with the social and
cultural traditions of the country.

 Registration of Copyright:
The Copyright Act provides for registration of works.
However, the registration under the Act is voluntary and
not obligatory. Registration does not itself confer
copyright but the particulars entered in the Register of
Copyright maintained in the Copyright Office constitute
prima facie evidence of ownership of copyright in
copyright cases. As per the provisions of the Act,
copyright subsists in any work as soon as it is created,
without any formality like registration being observed.

 International Nature of Copyright Protection:

Copyrights are national in nature. This means that your
rights are recognised by your national laws and extend
to the territorial limits of your country. However,
international treaties like the Berne Convention for the
Protection of Literary and Artistic Works (1886) the
Universal Copyright Convention (1952) and the
Agreement on Trade Related Aspects of Intellectual
Property Rights (1994) ensure protection of copyrights of
nationals of a member country in all other member
countries. Through the principle of ‘National Treatment’
it is ensured that foreigners if they are nationals of a
member country, are given the same rights enjoyed by
the nationals, except in the matter of term of protection.
India is part of the international copyright regime
through its membership of Berne Convention for the
Protection of Literary and Artistic Works, Convention
Establishing the World Intellectual Property Organization
(WIPO), Universal Copyright Convention, Convention for
the Protection of Producers of Phonograms Against
Unauthorized Duplication of Their Phonograms,
Multilateral Convention for the Avoidance of Double
Taxation of Copyright Royalties and Additional Protocol,
and the Agreement on Trade Related Aspects of
Intellectual Property Rights (TRIPS).

Trademark:-
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. That way,
trademark law is designed to fulfill the public policy
objective of consumer protection, by preventing the
public from being misled as to the origin or quality of a
product or service. Trademarks also serve as an
incentive for manufacturers, providers or suppliers to
consistently provide quality products or services in order
to maintain their business reputation.
Establishing Trademark Rights:
The law considers a trademark to be a form of property.
Proprietary rights in relation to a trademark may be
established through actual use in the marketplace, or
through registration of the mark with the trade marks
office of a particular jurisdiction. A trademark may be
eligible for registration if, amongst other things, it
performs the essential trademark function, and has
distinctive character. A registered trademark confers a
bundle of exclusive rights upon the registered owner,
including the right to exclusive use of the mark in
relation to the products or services for which it is
registered. The law also allows the owner of a registered
trademark to prevent unauthorized use of the mark in
relation to products or services which are similar to the
“registered” products or services, and in certain cases,
prevent use in relation to entirely dissimilar products or
services. Trademarks rights must be maintained through
actual use of the trademark. These rights will diminish
over time if a mark is not actively used. In the case of a
trademark registration, failure to actively use the mark,
or to enforce the registration in the event of
infringement, may also expose the registration itself to
removal from the register after a certain period of time.
The symbol ™ may be used when trademark rights are
claimed in relation to a mark, but the mark has not been
registered with the government trade marks registry of a
particular jurisdiction, while the symbol ® is used to
indicate that the mark has been so registered. It is not
mandatory to use either symbol, although the force of
convention is such that the symbols are widely used
around the world.

CHALLENGES FOR INTELLECTUAL

PROPERTY IN CYBERSPACE:-
Although a good proportion of the information on the
Web is in the public domain, that is, freely available to
use and copy, an increasingly significant amount is
protected as intellectual property. Many .com companies
took the approach that it was initially more important to
make their products available freely, and thereby
establish a market presence, and to address issues of
revenue and profit at a later stage. The enthusiasm
excited by the availability of so much online information,
easily accessible through browsing and hyper linking,
contributed to a general expectation that this
information was free and its use uncontrolled. So, a key
challenge is the expectation among many users that
information and intellectual property sourced or
downloaded from the Internet should be free of charge.
Right owner such as film and music creators, software
developers, authors and publishers, are now exploring
ways in which to make their products available online,
while protecting their rights and recouping their
investment. To some extent, the uptake of fee-based
intellectual property services is dependent on the
efficient management of these rights, as well as the
availability of workable and secure methods of micro
payments that would enable pay-per-unit purchases, and
the building of consumer confidence in online payment
security, privacy and consumer protection. So, another
challenge is to make intellectual property rights holders
feel secure and sure that they can protect their property
from piracy and control its use, before they will be willing
to make it available online. Peer-to-peer (P2P) networks
enable millions of users to upload and share their music
and film files via the Internet, often infringing copyright
in the works they trade. Difficult issues are raised by the
vast availability of intellectual property on the Internet,
the ease of copying and distribution of copies and the
relative anonymity afforded to these digital transactions.
Many companies that continue to operate in the online
environment have developed other business models,
often relying on advertising revenue or value-added
service charges to finance their free services and
information. Surveys have shown that consumers are
gradually becoming more willing to pay for online
content. However there remains a general reticence to
pay for material that was once free. This trend suggests
that education of online consumers is another challenge
for smooth exploitation of intellectual property on the
Internet. How does one protect digital content when
technology, by its nature, encourages copying? New
international laws such as the WIPO Internet Treaties,
adapt the intellectual property laws to facilitate the
dissemination of protected material over the Internet.
Technological tools such as encryption and
watermarking provide practical solutions and, together
with digital rights management initiatives, contribute to
meeting this concern. However, many creators and
rightsholders remain apprehensive. The first cum first
served principle of domain name registration has let to
the misuse of trademarks on the Internet. How to stop
this abuse is the paramount task of trademark owners
and international legal community. Trademark owners
expend vast resources, engaging automated ‘web
crawling’ software and cyber surveillance firms, to
monitor the billions of Web pages and protect their
intellectual property rights. Search engines have come to
acquire a unique position in the cyberspace. If you are
not indexed by a search engine you simply do not exist.
But in order to be indexed and to achieve a good rating
on any search engine, businesses have adopted all kinds
of ethical and unethical practices. The unethical
practices in the overall search engine optimisation are
known as spamdexing which involves the abuse of
someone else’s trademark. Another legal challenge is to
streamline the working of search engines so that their
abuse is minimized leading to the overall confidence
enhancement of the consumers.

Summary:-
The term intellectual property reflects the idea that this
subject matter is the product of the mind or the intellect.
z Copyright and trademark are of utmost relevance when
we discuss intellectual property protection in
cyberspace. z 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. z Copyright is a bundle of
rights and this bundle can be broadly classified into two
categories, viz. economic rights and moral rights. z 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. z Intellectual property in its various
forms has migrated to the Internet. z Books, music, films,
images, etc. are now readily available to be consumed
on the Internet. z The biggest challenge for the success
of e-commerce is to ensure proper control of intellectual
property present in cyberspace in the hands of right
owners.