Protection of Intellectual Property in the Cyberspace: A New Perspective

Introduction

During the pandemic when every corporate/office/firm is working remotely and the world has experienced rapid advancement in the field of e-commerce and e-business, the corporates and businesses need to protect their Intellectual Property in cyberspace. Cybercrimes are not limited to identity theft and frauds but also involve infringement of the Intellectual Property rights of the proprietors.

Intellectual Property (IP) refers to creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce^[1]. In layman’s language, IP is the creative work of the human intellect. The rights of Intellectual Property is an invisible, intangible right to a product of man’s brain. Thus, Intellectual Property at times is described as “knowledge goods”^[2]. Intellectual Property includes copyrights, trademarks, geographical indications, patents, utility models, plant varieties, industrial designs, trade secrets etc.

In this blog, certain acts amounting to infringement of Intellectual Property rights and the legal recourse available under the International regime are elaborated along with the need for the sui generis system for better protection of Intellectual Property online.

Actions online that amount to infringement of IPR

Different types of IPR-related cybercrimes are conducted to gain money or drive traffic to their websites. Some of these crimes are as follows: 

• Linking: The most common way for one website to link to another is through a link sometimes known as a "hypertext" link, which is a specially coded word or image that, when clicked, takes the user to another Web page. A link might lead to another page on the same site (an "internal link") or a completely another site (an "external link")^[3].

a.  Copyright infringement happens when, against the desires and knowledge of the copyright owner, one site provides links to copyrighted materials included in another site^[4].

• Framing: Framing differs from linking in that the information from the connected website is integrated into the original page and displayed in a customized "frame"^[5]. Because a framed site modifies the appearance of the content and gives the idea that its owner endorses or is linked with the framer, framing may result in copyright and trademark infringement.
• Inlining: Inlining a user without leaving a particular site can view a video featured at a different site^[6]. This also attracts IP infringement because of the notion of association in the minds of the user.
• Cybersquatting: Cybersquatting is the registration of another's trademark in a domain name in ill faith^[7]. These acts are treated as the common law tort of passing off and usually, a restraining injunction is passed^[8].
• Mate-tags: Meta tagging is a technique that involves inserting a word into the site's keywords field to boost the odds of a search engine returning the site, even if the site has nothing to do with the phrase that was put^[9]. When businesses incorporate meta tags including the names or descriptions of other businesses on their websites, they are committing trademark infringement^[10].

Protection under International Regime

• The Berne Convention, 1886 deals with the provisions for the protection of work of intellect and the associated rights of the authors. Computer programmes are likewise protected as literary creations under Article 2 of the convention^[11].
• The Rome Convention of 1961 protects performers in performances, producers of phonograms in phonograms, and broadcasting organizations in broadcasts^[12].
• WIPO Copyright treaty deals with the protection of work and rights of the authors in the digital environment. The treaty ensures that computer programmes are protected as literary works in all formats and forms of expression along with compilations of data or other material ("databases"), in any form, which, because of the selection or arrangement of their contents, constitute intellectual creations^[13]. Similar protection is provided under Article 10 of the TRIPS Agreement^[14]. The treaty also mandates member countries to provide legal remedies to prevent authors from evading technological barriers imposed by them to exercise their rights, as well as to limit unauthorized use and illegal activities^[15].
• The WIPO Performances and Phonogram Treaty also establishes worldwide standards to prevent unlawful access to and use of creative works over the Internet and other digital networks. This deals with the right of 2 kinds of beneficiaries i.e., performers and producers of phonograms in the digital environment^[16].
• According to the Uniform Domain-Name Dispute Resolution Policy, most trademark-based domain-name issues must be settled through an agreement, court action, or arbitration before a registrar, who can cancel, suspend, or transfer a domain name. Disputes allegedly arising from abusive domain name registrations maybe resolved through expedited administrative processes initiated by the owners of trademark rights by filing a complaint with an authorized dispute-resolution service provider^[17].
• The Organization for Economic Co-operation and development has also issued non-binding “Recommendations of the Council Concerning Guidelines Governing the Protection of Privacy and Trans-Border Flows of Personal Data” which deals with the recommendations for the protection of personal data^[18].

Conclusion and Suggestion

Upon a perusal of the above, it can be established that TRIPS and WIPO treaties provide for defensive or negative protection of the IPR in cyberspace i.e., any third party is prevented from gaining from IPR but they are not enough to cover every aspect. The need of the hour is to adopt a sui generis system for the protection of IP in the digital world. Sui generis system can be defined as the adaptation of some features of Intellectual Property systems to adequately suit the unique characteristics of cyberspace as well as the specific policy needs that led to the creation of this unique system^[19]. Sui generis, which means "of its kind," is a system of nationally recognized rules and methods for protecting Intellectual Property in cyberspace rather than through copyright and trademarks. The new legal system should establish a clear difference between the two domains of the cyber world while also harmonizing jurisdictional rules with other nations to ensure the standard system of jurisdiction.

 By: Pragya Jain                 

 (Co-Head of Reporters’ Committee, WCSF)

To stay updated, please visit our website: https://www.worldcybersecurities.com/

FOOTNOTES:

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^[1] WIPO, https://www.wipo.int/about-ip/en/ (Last visited: May, 28, 2021)

^[2] Bayers Corporation v. Union of India, Writ Petition No. 1323 of 2013 decided by Bombay High Court on 15 July, 2014.

^[3] Copyright and Fair Use, Stanford Libraries, https://fairuse.stanford.edu/overview/website-permissions/linking/ (Last visited: May, 28, 2021)

^[4] Shetland Times, Ltd. v. Jonathan Wills and Another, 1997 F.S.R. (Ct. Sess. O.H.), 24 October 1996.

^[5] Copyright and Fair Use, Stanford Libraries, https://fairuse.stanford.edu/overview/website-permissions/linking/ (Last visited: May, 28, 2021)

^[6] Working With Inline Graphics – What Is It Exactly?, Website Builders. Com, https://websitebuilders.com/how-to/glossary/inline/ (Last Visited: May, 28, 2021)

^[7] About Cybersquatting, ICANN, https://www.icann.org/resources/pages/cybersquatting-2013-05-03-en (Last Visited: May, 28, 2021)

^[8] Yahoo! Inc. v. Akash Arora & Anr., 1999 PTC (19) 201 (Delhi).

^[9] Linking, Framing, Meta-tags and Caching, https://cyber.harvard.edu/property00/metatags/main.html#:~:text=%22Meta%20tags%22%20are%20tags%20that,or%20descriptions%20of%20other%20companies. (Last Visited: May, 28, 2021)

^[10] Oppedahl & Larson v. Advanced Concepts (D. Colo. Feb. 6, 1998)

^[11] Article 2, Berne Convention, WIPO Database of Intellectual Property, https://www.unido.org/sites/default/files/2014-04/Berne_Convention_for_the_Protection_of_Literary_and_Artistic_Works_28.09.1979_0.pdf (Last visited: May, 28, 2021)

^[12] Summary of the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations (1961), WIPO, https://www.wipo.int/treaties/en/ip/rome/summary_rome.html (Last visited: May, 28, 2021).

^[13]Article 4 and 5, Summary of the WIPO Copyright Treaty, 1996, WIPO, https://www.wipo.int/treaties/en/ip/wct/summary_wct.html (Last visited: May, 28, 2021).

^[14] Article 10, TRIPS, https://www.wto.org/english/docs_e/legal_e/27-trips.pdf (Last visited: May, 28,2021)

^[15] Article 10, Summary of the WIPO Copyright Treaty, 1996, WIPO, https://www.wipo.int/treaties/en/ip/wct/summary_wct.html (Last visited: May, 28, 2021).

^[16] Summary of the WIPO Performances and Phonograms Treaty (WPPT) (1996), WIPO, https://www.wipo.int/treaties/en/ip/wppt/summary_wppt.html (Last visited: May, 28, 2021)

^[17] Uniform Domain-Name Dispute-Resolution Policy, ICANN, https://www.icann.org/resources/pages/help/dndr/udrp-en (Last visited: May, 28, 2021)

^[18] “Recommendations of the Council Concerning Guidelines Governing the Protection of Privacy and Trans-Border Flows of Personal Data”, OECD, https://www.oecd.org/sti/ieconomy/2013-oecd-privacy-guidelines.pdf (Last visited: May, 28, 2021)

^[19] Is sui generis system necessary? International Intellectual Property Institute, https://iipi.org/wp-content/uploads/2010/07/NewYork011404.pdf (Last visited: May, 28, 2021)