November 28, 2021

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Analysis of laws/regulations pertaining to digital Intellectual Property Rights

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This article is written by Divjot Arora, Chandigarh University, Gharuan, Punjab.

Table of Contents

Digital Intellectual Property Rights (dIPR) is a new buzz word in the era of digitalization across the world including India. Digital Intellectual Property Rights (dIPR) in India have already taken long strides. Digital Intellectual Property Rights empower the creators to protect their digital Intellectual Property, be it product or service. Digital IPR are governed by laws and regulations promulgated for the general Intellectual Property Rights except the Information Technology (IT) Act, 2000; the latter is specifically applicable to IT intellectual property. Critical analysis of various laws reveals their limitation for digital IPR. To safeguard Digital Intellectual Property Rights, there is an urgent need to frame digital property-centric laws and regulations.

The word ‘digital’ applies to the use of computer technology for using or storing any data or information in form of digital signals. It includes artificial intelligence (AI), blockchain applications, quantum computers, and virtual and augmented reality peer-to-peer (“P2P”) file sharing software, blogging, podcasting and streaming – new ways of distributing content.

Components of a digital world may be viewed as cyberspace, perceived as a virtual world or as Internet and the World Wide Web (WWW) commonly called the Web. It brings together various services (E-mail, remote logging, file transfers, discussion groups, etc.) and incorporates global document search engines. Digital IP represents a sizeable fraction of growing global economy. Digital IP includes software, computer programmes, audio & video clips, social media networking, user-generated content, live sports, e-books, trade domains, websites, internet, e-mails, etc; creation of which requires lot of investment and technology.

Digital IPR empowers the creators of digital intellectual property to protect it from piracy and also provides access to unlimited knowledge to their enterprise to achieve increased level of innovation, creativity, secured and unhindered brisk progress in the digital world by just a single click of button. Since digital content can easily be copied so it necessitates copyright, patent and trademark model in the digital environment. The importance to protect digital IPR is recognized by various laws- Domestic and International.

Digital IPR represents Intellectual Property Rights in the digital environment. Under the WIPO Convention “Intellectual property” shall include the rights relating to: – literary, artistic and scientific works, – performances of performing artists, phonograms, and broadcasts, – inventions in all fields of human endeavour, – scientific discoveries, – industrial designs, – trademarks, service marks, and commercial names and designations, – protection against unfair competition, and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields Intellectual Property Rights (IPR) refers to the legal rights exclusively granted to the inventor to protect their invention for limited period of time. In other words, we can say that these rights prohibit all others from using the Intellectual Property for commercial purposes without the prior consent of the IP rights holder. There are seven categories of Intellectual Property Rights:

i) Copyright and Related Rights, ii) Trademarks, Trade names and Service marks, iii) Geographical Indications, iv) Industrial Designs, v) Patents, vi) Layout Designs of Integrated Circuits, vii) Undisclosed Information. 

Intellectual Property Rights have been far back recognized in the 15th century when patents were granted for invention in Venice. Through International Law, modern initiatives were taken to protect IP with the Paris Convention for the Protection of Industrial Property (1883) and the Berne Convention for the Protection of Literary and Artistic Works (1886). Today there are more than 25 international treaties on IP administered by WIPO (World Intellectual Property Organisation).

IP rights are also safeguarded by Article 27 of the Universal Declaration of Human Rights. The perusal of the statutory provisions and scope of various laws reveals that they are valid for digital IP; and have also been revised under TRIPS agreements. India has also laid down a roadmap for IPR including digital IPR. In India the legislative framework for securing IPR, including Digital IPR is as follows: 

  1. The Indian Contract Act, 1872.
  2. The Trade Marks Act, 1999.
  3.  The Copyright Act, 1957 (14 of 1957).
  4. The Patents Act, 1970.
  5. The Designs Act, 2000 (16 of 2000).
  6. Geographical Indications of Goods (Registration and Protection) Act, 1999.
  7. Information Technology Act, 2000.

Rigorous research is already on to protect IPR on digital platforms. The progression of technology is challenging the status quo of IPR in many ways. Certainly the rise in digitalization creates global market for content and right holders but it also creates a threat like – piracy, spoofing, phishing etc. IP infringement online is the dark side of digital world. In no way we could imagine evolution of digital technology without software or computer programmes.

So is software Patentable in India? Or has Copyrights? According to The Copyright Act, 1957, computer programs come within the ambit of literary works. However, for a software or computer program to be granted copyright protection, it is essential that the work is original. The Indian Patent Act goes on to say that “a mathematical or business method or a computer program per se or algorithms” are not inventions and therefore not patentable.

In the case of Ferid Allani v. Union of India and Ors., the Delhi High court offered clarity for the words ‘per se’ by stating that “… sometimes the computer program may include certain other things, ancillary thereto or developed thereon. In today’s digital world, when most inventions are based on computer programs, it would be retrograde to argue that all such inventions would not be patentable. Innovation in the field of artificial intelligence, blockchain technologies and other digital products would be based on computer programs; however the same would not become nonpatentable inventions – simply for that reason.” Now in practice, a tangible component must be a part of the invented software to make it patentable i.e. a combination of hardware & software.

A number of companies in the technology sector has set up business models that are entirely based on inventing new technologies, patenting the invention and then licensing the rights. This has led to a situation called “patent thicket” where there is interrelated and overlapping patents resulting in a lack of clarity of who owns the patent and as a consequence, where to go for the license. The action for infringement of Patent shall begin with institution of suit in the court having jurisdiction and can seek remedy in form of interlocutory injunction, damages or account of profits.

The limitation period for filing suit for the patent infringement is 3 years from the date of infringement and jurisdiction is the geographic area where the infringement has taken place. The advent of digital technology has increased the number of copyright violations. The penetration of social networking sites has led to publishing and sharing user-generated content, there is piracy of music, films, and live sports by having unauthorised access. It is significant that user post copyright material on these sites unknowingly or unintentionally.

The Copyright Act, 1957 provides to an author both civil and criminal remedies. Civil remedies for infringement of copyright is provided under Section 55 of the act in the form of injunctions, damages, interpretation of accounts, delivery and destruction of infringing copies and damages for conversion. Criminal remedies such as imprisonment, fines, seizures of infringing copies and delivery of infringing copies to the owner for the offence is provided in chapter XIII of the Act.

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Sometimes the court can also direct that infringing websites be blocked by internet service providers (ISPs). In a recent case, the Delhi High court said that in case of compilations another person can make similar compilation, but cannot fringe upon the copyright of the previous compiler by appropriating fruits of his labour. The limitation period of bringing a copyright infringement claim is six years from the date of infringement.

Also, there exists a separate Sui Generis (of its own kind) database right in addition to copyright protection given to the maker of database against extraction or re-utilization of the contents of database. This right is available to the makers of the database and software for a period of 15 years. It is to note that in John Richardson v. Flanders held that incase of computer programs, there will be no infringement of copyright if a person:

  • makes back-up copies of software.
  • flourish inter-operable products by using one of the copyrights.
  • uses to correct errors so that original software operates without any hurdles.
  •  copies in order to check security testing of computer programmes.

The digital economy offers wider scope for both the legitimate and counterfeit use of trademarks. The trademark owner has its own issue to keep a track on domain zones and secure its domain names. From a business point of view, the domain is the requisite for brands to market and to sell their services globally. There is trademark infringement of domain names through cybersquatting, typosquatting, registration by competitors conflicting interests, parody and reverse domain name hijacking.

The domain name disputes are solved mainly through Uniform Domain Name Dispute Resolution Policy (UDRP), negotiations (WIPO Arbitration and Mediation Center Decisions on Domain Name) or institution of a suit. In India there are no specific législations which clearly and in detailed manner describe cyber squatting or other domain name disputes. However, since domain names may be considered as trademarks and in the absence of appropriate law the action can be taken under The Trade Marks Act, 1999.

In India one of the earliest judgments on cybersquatting was from the Bombay High Court in case of Rediff Communication v. Cyber booth. In this case, the court was of the opinion that the value and importance of a domain name is equivalent to any corporate asset of a company. In this case, the defendant had registered the domain name which was similar to The Court was of the opinion that internet domain names are of importance and can be a valuable corporate asset and such domain name is more than an Internet address and is entitled to protection equal to a trademark. The court gave the decision in favor of the plaintiff. The limitation period for the infringement of trademark is not expressly provided in the Trade Marks Act, 1999. 

Confidential information can be defined as information that can be legally protected and provides a business advantage to the owner of that information by virtue of the fact that it is kept secret. Confidential information and trade secrets are synonym to each other. It was pointed out in the case of Stephen John Coogan v News Group Newspapers Limited and Glenn Michael Mulcaire that while confidential information might not be “property” as a matter of law, it is often treated as part of intellectual property.

However, confidential information is one such IP that still does not have any legislation for its protection. Few judicial precedents of UK and India provide principles for protection of confidential information. It is possible to keep limitation on the use of confidential information or its disclosure, and whenever someone crosses that limitation it gives grounds to enterprise to seek remedies from the court. The confidential information can also be protected through non-disclosure agreements (NDAs).

In the case of emails and internet, there shall be marking or notice such as ‘confidential’ or ‘commercial in confidence’ by the enterprise as a matter of precaution. The civil remedies available in India for the breach of confidence include an injunction, the return of all confidential and proprietary information, and compensation or damages. The court may also order the party at fault to “deliver-up” such material. Criminal remedies are provided under the Information Technology Act, 2000 in case of breach of secured access to any information which has been disclosed without the consent of the person concerned.

The critical analysis of various laws/regulations in reference to digital IPs and digital IPR reveal limitation in their statutory provisions and implementation. Existing legislations does not have enough provisions for IP in the digital environment. These fail to reveal the stage at which the information loses its protection after release on public domain; extent of sui generis; limitation period of trademark in trade-related domain names; absence of specific legislation for confidential information, etc.

The Information Technology Act, 2000 (IT Act), which covers many cybercrimes, surprisingly ignores the problem of domain name disputes and cybersquatting. Still a lot is desired from the legislative bodies to frame well-defined digital policies supported by laws and regulations to cover digital IPR. The lack of comprehensive legislation over digital IP has been the matter of concern for the digital property creators as their wait for it has been prolonged.

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