INTRODUCTION
In today’s world, technology is one of the fundamental aspects in every sphere of our lives. With the swift growth and penetration of technology across several sectors, several new opportunities have come to the forefront. However, on the other hand, the penetration of technology has also given rise to violation of several rights entitled to every individual, and have brought about new kinds of threats for the common people.
The common types of violation include, but is not limited to software piracy, data theft, unauthorized reproduction and distribution, and several other kinds of cybercrimes.
To prevent such violation and threats, and to protect the work of various creators, Intellectual Property (IP) plays a pivotal role. IP in Information Technology (IT) is a comprehensive exploration of the intertwined relationship between the both and is a very broad, complex and ever-evolving area of law.
In a world where everything is digitized and easily available on the cyberspace, all the companies and businesses should safeguard one of their key assets i.e., IP. Securing one’s assets via IP protection measures such as patent, copyright, trademark, trade secrets, etc. adds value to the business in an already saturated and competitive market.
IMPACT OF INFORMATION TECHNOLOGY ON INTELLECTUAL PROPERTY
IP Rights (IPR) are statutory rights arising from creations and innovation of the mind in the field of literature, inventions, science, architecture, etc. IPR allow the creators or owners of innovative and creative works to benefit from their work or investment in a creation.
Typically, IPR protects the investment in the innovation by granting the inventor a monopoly on the use of the invention so as to prevent rapid imitation that would reduce the investor’s profit. On the other hand, IT has taken over almost all the aspects of our lives. The Internet and IT has bridged the gap between the intellectual works and ready availability of the same for one and all. IT has made way for several cost-effective and user-friendly methods to access an array of literary works, artistic pieces, scientific innovations, etc.
Even though technology has been a boon to mankind, it has somewhat brought about a delay in enforcing the traditional mechanisms and procedures. Technology and widespread digitization have made copying, transferring and transforming of works much cheaper and faster.
Nowadays computer systems and cloud storages can store massive amount of data and information even without the formal consent or knowledge of the owner of the work. As a result of the same, the IP owners face difficulties in detecting the infringements in the first place.
As on the date, a layman does not have a proper understanding of IPR and the IP issues prevalent in various industries. Every second day technology is being updated and the IT sector is getting even more advanced. Therefore, this ambiguity and uncertainty pertaining as to how IT is affecting the IP, needs to be addressed at the earliest. It is important to understand that the technological change has affected IP in a different manner and hence it is necessary to understand the challenges pertaining to the same.
IPR ISSUES IN CYBERSPACE
With the headway and prominence of web-based business and e-business, it has gotten significant for organizations and associations to secure their licensed innovation rights on the web. There are numerous digital wrongdoings pertaining to IPR that are perpetrated to bring in money or to attract traffic to the infringer’s website.
A. Copyright Violation in Cyberspace
Encroachment of Copyright on the web has gotten more predominant in the contemporary time. As expressed before, Internet is the greatest danger of Copyright holders because of the borderless nature of the Internet, as it becomes fairly difficult to identify the encroachment on the web due to the same.
A few Copyright violations in the cyberspace are discussed as under:
1. Framing
Framing is the technique wherein one website includes the contents of another independent website into its own frame, giving the framing site the appearance of the original website. Framing is typically done via hyperlinking.
Each frame in framing works independently, ensuring that the data downloaded into it stays within the frame and does not cross over into another frame or overlap into the frame itself.
As a result of the foregoing, the user remains on the framing website and reads the contents, unaware that the material is from a different framed website. It is pertinent to note that the person who is enjoying outlining content from another person’s page isn’t directly imitating the protected content. This procedure is similar to that of the ‘picture-in-picture’ mechanism.
The infringer primarily uses the creative content of another website to draw traction towards the infringer’s website through the technology of framing. This entire process leads to copyright infringement wherein the creative content of another website is being infringed upon.
2. Linking
The term ‘linking’ refers to the ability of a website user to access another website on the Internet without leaving their current one. By clicking on a phrase or image on one web page, the user can go to another web page on the same server, or on another server entirely.
Broadly, linking are of two types:
- Surface linking, wherein the link takes the user to the home page; and
- Deep linking, wherein the link directs the user to subsequent pages of the particular website.
The process of linking violates the rights or interests of the proprietor of the primary website wherein the other website is linked, as it might create the impression that the two websites are connected or interlinked in any manner. Due to the same, the original website which the user initially wanted to visit may lose traction.
The procedure of linking is almost similar to that of passing off wherein a brand markets and sells its goods under the goodwill of another well-known brand.
3. Caching
Caching is the procedure whereby a material is replicated from a unique source and thereafter stored in the computer system. Such replicated and stored material can be accessed anytime through the computer system.
Storing may be executed by mainly two different ways:
- Locally: The cache is stored in the hard disk of the computer system
- Proxy caching: The cache is stored in the main server of the system.
Caching leads to replication of a creator’s content without his due knowledge or consent.
4. Software Piracy
Software piracy is the illegal use of a particular software by copying and distributing them among several organizations or businesses. Such unlawful reproduction of the software and distribution of the same can lead to huge losses for the original creators.
Software piracy comes under the ambit of copyright infringement as it is sold and distributed without the knowledge and consent of the original creator or owner.
B. Trademark Infringement in Cyberspace
The violation of a trademark happens wherein one enterprise, in order to deceive consumers in the course of commerce and to make profit from utilising the goodwill of another enterprise, usually utilises the trademark of another enterprise or a trademark deceptively similar to that of another.
This unlawful procedure has been made considerably easier with the introduction of the Internet. The competing companies register their websites with similar names as that of their competitors in order to trick their consumers, and register domain names.
Trademark issues pertaining to domain names are extremely common in the cyberspace. In several cases, well-known trademarks are used as domain names in order to confuse the users.
1. Cybersquatting
In such instances, the person registers a domain name in bad faith and then gradually sells the domain name to the legitimate trademark holder in exchange for an exorbitant amount of money. This entire process is done with a motive of making money and malicious intent.
The person while registering the domain name has the knowledge that another entity would seek to register the domain name for their own business. This process of cybersquatting results in unfair trading and ends up confusing the customers or the potential customers of the entity.
2. Profit Grabbing
It is similar to the process of cybersquatting; however, the only difference is that the person does not have any intention to sell the domain name for a huge amount of money. Instead, the intention is to take advantage of the reputation and goodwill of the entity and to exploit the commercial success.
3. Typo Squatting
It is a kind of cybersquatting wherein the entire process relies on the typing errors of the users while entering the website address. As and when the user enters a wrong website address due to any typographical error, the internet directs it towards the page which has been constructed with the aim of tricking the internet users.
4. Meta Tagging
Meta tags are the information which describes the contents of a particular webpage and are invisible to the website users. Primarily, meta tags can be classified as description meta tags and keyword meta tags. The former provides a brief description of the website and the latter is a particular term or word that describes the website.
The key issues with regard to meta tagging as a trademark infringement in cyberspace is third-party use of well-known trademarks in one’s meta tags. Website owners embed trademarks of third parties in order to attract users or traffic from the legitimate trademark owner’s website. Meta tagging can lead to confusion among internet users who want to access the authentic page of the trademark owner.
AMLEGALS REMARKS
The Internet is turning into a centre point for encroachment of IPR of different organizations. In this evolving market, it has become significant that individuals know about the illicit use of their sites and pages.
IP protection is critical to the success of e-commerce. Traditional IPR rules have been applied to cyberspace as well. However, owing to the intrinsic structure of the internet, numerous important difficulties have arisen, including jurisdictional rules, identifying hybrid types of online infringements, and addressing conflict of laws concerns that apply equally in cyberspace.
Several social, technological, and legal efforts and measures to safeguard IP and negate the chances of IP infringement in cyberspace have been proposed and incorporated. However, in today’s evolving times, every individual should have the knowledge of his/her rights pertaining to their work and be more aware about the same.
In our upcoming blog, we shall discuss about the remedies available to the IP owner with regards to IP infringement in the cyberspace.
For any queries or feedback, please feel free to get in touch with chaitali.sadayet@amlegals.com or mridusha.guha@amlegals.com.
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