In our previous blog, The Interplay Between Information Technology and Intellectual Property: Part I, we discussed about the several intellectual property rights (IPR) issues in the cyberspace. In the present blog, we shall delve further into the concept of Database Protection and the remedies pertaining to IPR infringement in cyberspace.
Database is a set of data collected for certain purposes, which is usually stored in the computer systems of an organization or business. Digitization has affected every sphere of our lives, including businesses. Nowadays organizations and businesses tend to store all of their data pertaining to their business or trade, clients, employees, and every other detail of the organization in computer systems or cloud storages. This entire set of structured data forms the database of the organization.
It is extremely important to implement a robust and effective protection mechanism or safeguard policy in order to protect the database from external threats or security attacks. Data pertaining to the company’s trade secrets, innovations, exclusive industrial designs, etc., come under the ambit of IP.
As databases are subject to large-scale embezzlement, the lack of adequate legal protection could have a number of detrimental effects on daily life. Databases are subject to embezzlement because the information they contain is highly vulnerable. Information, by its very nature, is omnipresent, inexhaustible and indivisible.
Consequently, the second use of some particular new information does not diminish or exhaust it. Once disclosed to the public, the information can generally be used, ignoring contractual or non-contractual liability, without charge and without the permission of the database provider or any repayment obligation for its investment. This applies to both the off-line and on-line markets.
Paradoxically, providing protection to one database vendor creates a legal barrier for other potentially competing database vendors attempting to enter the market. This barrier is particularly effective in the case of single-source database manufacturers. It becomes clear that the need for protection should be balanced with the need for competition.
However, it is not only the special interests of the database industry that are at stake but also the public interest in the dissemination of culture and knowledge in today’s society is equally involved, which requires full access to all types of information.
The aforementioned state of affairs requires a coherent and firm strategy on the part of the Governmental and Non-Governmental bodies in charge both nationally and internationally. It is essential to realize that the legal protection of databases should not be treated in isolation, but should be seen as part of the legal protection of IPR in the information society in general.
Database Protection Framework
At the moment, India does not have any database protection framework. However, the limited protection available on the national front is mentioned hereunder:
1. Constitution of India: Article 21 of the Constitution guarantees the fundamental Right to Personal Liberty which is inclusive of Right to Privacy. Therefore, Right to Privacy can be used to enforce protection pertaining to databases as they contain personal information of several people.
2. Copyright Act, 1957: The Copyright Act, 1957 (Copyright Act), provides protection for ‘literary work’ and the definition of the same is provided in Section 2 (o), wherein ‘database’ is included. Therefore, reproducing a database or distributing the database shall amount to copyright infringement, following which, civil and criminal remedies can be initiated.
3. Information and Technology Act, 2000: The Information and Technology Act, 2000 (IT Act) contains provisions pertaining to protection of personal or sensitive personal data which is being processed or stored by any corporate body.
Section 43A of the IT Act states the compensation with regard to failure to protect data and 72A stipulates the punishment for unlawful disclosure or data. Both the provisions can be enforced in order to seek remedy regarding unlawful copying or transfer of database.
REMEDIES PERTAINING TO IPR ISSUES IN CYBERSPACE
1. Civil Remedies
The civil remedies for Copyright infringement are covered under Section 55 of the Copyright Act, 1957. The different civil remedies include interlocutory injunctions, damages, Anton Pillar orders, Mareva injunction, and Morwich Pharmacal orders.
2. Criminal Remedies
Section 63 of the Copyright Act lays down the criminal remedies in case of copyright infringement. The punishment for the offence shall not be less than six months and may extend to three years and fines shall not be less than Rs. 50,000 and may extend to Rs. 2,00,000.
Infringement of both registered and unregistered trademarks is punishable by remedies. In the first situation, it serves as a catalyst for initiating infringement proceedings in a Court of law, but in the second case, it aids in the transfer of the infringement to common law.
In India, trademark infringement is dealt with by Section 29 and Section 30 of the Trade Marks Act, 1999 (Trademark Act).
1. Civil Remedies
Injunction or authoritative bearing by the official courtroom is a typical common cure that can be given. The two sorts of Injunction that can be conceded are perpetual and temporary injunction.
Subsequently, the aggrieved person may seek damages on the grounds that his or her exclusive right to use his or her trademark has been terminated, resulting in losses to him or his business. The management of profit accounts, as well as a demand for delivery or removal of the infringing items, is a civil remedy that is frequently invoked.
2. Criminal Remedies
Section 103 of the Trademark Act establishes a criminal penalty for infringing on a person’s or entity’s Trademark, imposing a six-month sentence that can be extended up to three years for infringing on a person’s or entity’s trademark.
Section 104 of the Trademark Act discusses the fines that must be provided as a penalty for an infringement. If someone is determined to have violated trademark rights, the provision stipulates a punishment of Rs. 50,000, which can be raised to a maximum of two lakhs.
As discussed above, all the sectors are witnessing a dynamic shift towards digitization wherein the organisations are using cloud databases and other such systems for storing their data.
When such data in bulk is being stored digitally, it is important to safeguard the databases and protect the work of the organisations. Organisations should ensure that such intangible form of content and work is duly protected as it contains details of not only the organisation, but its employees, clients, users, etc.
In the event of any infringement of the databases stored digitally or infringement of IPR in the cyberspace, the organisations should seek remedies under the appropriate legislation at the earliest.
For any queries or feedback, please feel free to get in touch with email@example.com or firstname.lastname@example.org.