INTELLECTUAL PROPERTY RIGHTS IN CYBER

SPACE

Kaviya B1

ABSTRACT
Intellectual property rights are an extended form of the legal rights available to individuals.
With the advancement in technology even intellectual property rights are threatened by
cybercrimes. Due to this cyber security for intellectual property has become important. This
research paper underlines the concept of intellectual property rights in cyberspace. Various
categories of copyright and trademark infringements in cyberspace have been discussed in
detail. Protections available under national and international legal framework are examined.
The paper concludes with suggestions to strengthen the protection of intellectual property
rights in cyberspace.

KEYWORDS: Intellectual property rights, cyberspace, cybersecurity.

1
AUTHOR, B.Com LL.B (Hons.), School Of Excellence In Law.
LITERATURE REVIEW

1) David Satola and Henry L.July , in “Towards a Dynamic Approach to Enhancing

International cooperation and collaboration in Cyber Security Framework” have
discussed that both the government and private sector around the world are concerned
about cyber security. Cyber threat can be in the form of cyberattack, but can also be in
result of “mistakes” or even natural disasters. In the framework of cyber security there
must be a specific approach to the particular problem. 2
2) The authors have concluded that there are too many violations of intellectual property
rights, as the world is emerging with technological developments. An IP owner has to be
aware of his rights even in the cyber space. Going cyber-friendly is no longer an
option. This is the need of the hour, especially from the point of view of business, crime
and intellectual property rights that protect copyright.3
3) The article introduces the fact that India is the second highest cybercrime country in Asia
according to International World Statistics. The authors had penned out what constitutes
the meaning of various categories of cybercrimes and the lack of awareness among the
public. In addition, the article discussed in detail the types of cybercrimes, which include
email fraud, phishing, identity theft, domain name lifting, online fraud, etc. The authors
also discussed current trends, cyber laws in India, punitive damages and methods of
prevention.4

RESEARCH OBJECTIVE

The primary objective of the research is to delve into the intellectual property rights and
issues in cyber space. The research is based on authentic information, which has been
summarised, standardised and studied. The main objective of this paper is to understand:

1) What are the intellectual property rights disputes in cyber space?

2) What are the laws governing intellectual property in cyber space?
3) How to protect intellectual property rights in cyber space?

RESEARCH METHODOLOGY

2
The MW. Mitchell law journal.
3
Dr. Nituja Singh, Mr. Sandeep Suman and Mr. Sahil, “A Basic Outline Of IPR Laws With Cyber Law: An
Indian Perspective”, “Journal of Positive School Psychology”, 2022, Vol. 6, No. 6, 4406-4412.
4
Shubham Kumar et al, Present scenario of cybercrime in INDIA and its preventions, 6 no. 4 International
Journal of Scientific & Engineering Research, 1971 (2015).
The research is based on Doctrine research method. Documentary and rational
methodologies are used in the research. The paper uses information from both primary and
secondary sources. The primary data was gathered from statutes, reports, and other judicial
decisions in terms of original sources. Data from the secondary sources was obtained from
books, journals, articles, newspapers, magazines, blogs, and the internet.

INTRODUCTION

The Intellectual Property rights are awarded for any creation of mind. It gives right to the
owner to protect their original work from being used or copied by another person. “Anything
that is worth copying is evidently worth protecting”5. Some notable protections are patent,
copyright, trademark, geographical indications and designs. Cyber space is a platform where
a series of computers are connected through a network to facilitate communication between
them. With the advancement in technology and rapid growth of digitalisation, cyber space is
easily accessible as internet seems to be used by all. Due to this, cyber space has been used
for marketing, trading and business. Which ultimately paves a way for the infringement of
intellectual property rights. In navigating the vast expanse of the internet, issues such as
online piracy, unauthorised use of digital content and rapid dissemination of intellectual
property have emerged. It can be concluded that cyber law and intellectual property rights are
two sides of the same coin. The infringements over the cyber space occurs when there is
unlicensed use of service marks, domain names, images, trademarks and other intellectual
creations by way of illegal methods. The important issue in the cyber realm is that there is no
adequate legal framework to address the intellectual property issues in the cyber space.

THE INTELLECTUAL PROPERTY RIGHTS ISSUES IN CYBERSPACE

The major issues related to infringement of intellectual property rights can be categorised in
following ways-

 Trademark Infringement

 Copyright Infringement

TRADEMARK INFRINGEMENT

1) DOMAIN NAME DISPUTE

5
Observed by Justice Paterson in University of London v. University of Tutorial Process ltd., 1916 (2) Ch 601.
 Every information on the web has IP address of the server as well as the address where
the information is located on the server. This is called Uniform Resource Locator. One
can access the information on web by typing the URL. The domain name is device to
easily remember the IP address, for example the IP address of Yahoo is 66.94.230.35 and
the domain name is yahoo.com.
The apex court in Satyam Infoway case6 held that a domain has characteristics of
trademark and the suit to protect it is maintainable. aids in distinguishing trade or service
to the internet users. The dispute arises when a person uses the trade name of another as
domain name.
At present the domain names are protected and managed under ICANN 7. The ICANN
has provided a procedure called UDRP8 to resolve domain name disputes and it has
framed ‘Rules for Uniform Domain Name Dispute Resolution Policy’.
As a relief against the unauthorised use of domain name the plaintiff can:
a) Institute a suit for passing off and damages.
b) File for injunction where the defendant has obtained an identical or deceptively
similar domain name. 9
"Googlenetbiz.com" was the website in question in Google Inc. v. Mr. Racha
Ravinder.10 Google claimed that the defendant's website bore an exact resemblance to
the globally registered Trademark “Google”. It was contended that the respondent
violated the trademark since their website is identical to the global trademark "Google,"
and that they registered it with the intention of confusing website users. The panel upheld
the complainant’s views and ordered the site to be transferred to Google Inc.
2) METATAG AND KEY WORD DISPUTE
Information on the internet is accessed with the help of search engines. When a user
typer a keyword into the search engine, a list of hyperlinks to the relevant Web pages
appear. To find to search its database and return with relevant information search engines
make use of metatags. Meta-tags are specific lines of code knitted in web pages that are
used by search engines.11 These are HTML12 tags which includes page’s title, description
and keywords. They form part of the HTML code, which generates the web page and are

6
JT 2004 (5) SC 541.
7
The Internet Corporation for Assigned Names and Numbers.
8
Uniform Domain Name Dispute Resolution Policy.
9
Times Internet Ltd. V Belize Whois Service Ltd., 2011 (45) PTC 96 (Del).
10
WIPO D2009-1454 (October 28,2009).
11
People Interactive (I) Pvt. Ltd. v. Gaurav Jerry; MIPR 2014 (3), 101.
12
Hyper Text Markup Language. HTML is the standard markup language for creating Web pages.
 hidden from normal view of the user but are read by search engines. Legal complication
arises when a person uses trademarks of others as a metatag to associate oneself with
them then this may result in a trademark violation. 13 In Amway India Enterprises Pvt.
Ltd. v. 1MG Technologies Pvt. Ltd.14 the court held since the third-party e-commerce
platforms had used the plaintiff’s trademark “AMWAY” for improving their own sales, it
is considered use of a mark in meta tags. Repeatedly the Indian courts have stated that
even though the Meta Tags may not be visible to end users it does constitutes
infringement of trademark. Meta Tags are harmful and causes unfair advantage to the
distinctive character of a right holder.

COPYRIGHT INFRINGEMENT

1) CYBER SQUATTING & TYPO SQUATTING

Cyber-squatting is a kind of Domain name dispute which involves registering the web
sites with famous names to obtain profit. It is illegal due to the bad-faith of the squatter.
Domain squatting can be considered a form of trademark infringement.
Types of Cyber Squatting:
a) Typo-squatting: It is a practice of using a minor variation of registered domain
names to divert users to a fraudulent website if they type a domain name incorrectly.
b) Identity Theft: Identity theft can also occur with the help of cybersquatting because a
company’s digital identity can be stolen to create a similar URL. When a user goes to
that company’s website, they may be diverted to the fake website.
c) Reverse Cybersquatting: Reverse domain name hijacking, also known as reverse
cybersquatting, is the opposite of cybersquatting. It is a process of making false
claims that a person owns a trademark and taking steps to legitimise the domain
name. For example, a URL called lawforall.com. is created. Someone can start a
business, name it Law for all, and claim that their business name is cybersquatted.

2) LINKING
Linking is process of directing a user from one website to another location on the internet
by clicking or touching a text, hyperlink, image on the current page. More specifically
when the hyper-link directs the user to the home page, it is called linking and if it is to
the sub-pages inside a home page it is called deep linking. This leads the user to believe

13
Ibid.
14
260 (2019) DLT 690.
 that the two websites are linked under the same domain name. Linking is the crux of the
world wide web. But it has its repercussions because it may undermine the rights of the
owner of the page it is linked to.
In Shetland Times, Ltd. v. Dr. Jonathan Wills and Another15, the plaintiff operated a
Web site which contained in the printed version of its newspaper. The defendants also
owned a Web site to provide news reporting service. Defendants reproduced a number of
plaintiff’s headlines and it was hyperlinked to their website due to this the reader gained
access to internal pages in the plaintiff’s site. The court issued an interim injunction
against the defendants. Nevertheless, linking is not a copyright infringement, as it was
held by European court of justice hyperlinking to a previously published work is not
copyright infringement16.

3) INLINE LINKING
It is a process of creating a new web page by summoning audio/image/picture/video from
other websites. It is also called as hot link or remote linking. The problem arises when
the image or file is trademarks or copyrighted, because it becomes illegal to use them
without the authorisation from the owner.
In Kelly vs. Arriba Soft Corp17 the plaintiff’s photographs were unauthorisedly
incorporated into the database of the defendant’s visual search engine. The photos were
converted into thumbnails and any user of the defendant’s site could access the images
for free of cost. The defendant was sued for infringement of copyright. The defendants
took the defence of fair use as they did not advertise or commercially exploit the photos
and the website operated in the nature of a visual search engine. The visual search
engines usually provide a thumbnail index. The Courts accepted the defence and stated
that a transformation of copyright work for an entirely different use, shall not be
considered as infringement. The courts through a series of judgements have
differentiated between ‘copying’ and ‘importing’.
In Nunez vs. Caribbean International News Corp 18, a photograph which was planned to
be used for a modelling portfolio was used in a News article and the Court held that
using a photograph for a modelling section in a news article was not infringement as
there was transformation of purpose.
15
1997 FSR 604.
16
Union Nils Svensson v Retriever Sverige AB, (Case C-466/12) on 13 February 2014.
17
No. SA CV 99-560 GLT (JW 1999) US District LEXIS 19304.
18
235 F. 3d 18 (1st Circuit 2000).
4) FRAMING
Framing is a tool used by websites into separate windows: each window is displayed in a
separate portion of the webpage and has the capacity to display an individual web page.
The websites bring in contents from another independent website into its own frame.
The user can view another site’s content within a small area of the initial site, without
actually leaving it. Framing can be distinguished from linking in such a way that framing
allows the entire site to be viewed on the initial site and the latter allows only the image
or audio or video to be viewed.
Framing can be highlighted in the case of Washington Post Co v Total News Inc.19 In
this instance, the defendant created a website that combined information from more than
1200 news sources. On the defendant's website, the plaintiff's news column was located
on the left side, whereas Totalnews.com was displayed at the top. Upon clicking the news
link, the plaintiff's webpage was displayed. Thus, the plaintiff claimed that there had
been online copyright infringement. However, after the defendant consented to stop
using framing tactics, the parties came to an out-of-court settlement. Framing may result
in copyright or trademark infringement.

5) PEER TO PEER FILE SHARING

The peer-to-peer file sharing enables to copy or share a file from another compuer on the
internet. In P2P file sharing, it is a requirement that the files should be indexed. There are
different kinds of indexing system namely- centralised indexing system, decentralised
indexing system and super node system.
The Napster case:20
Napster developed a peer-to-peer file sharing platform called MusicShare. It was used to
facilitate the transmission of MP3 files among users. The users of the platform can copy
and transfer MP3 music files from their own or others’ computers. Napster was sued by
AM music, Sony Entertainment for copyright infringement. The District Court found
Napster guilty. On Appeal, the U.S. Court of Appeals affirmed that Napster violated the
right of reproduction and distribution and agreed with the District Court’s conclusion that
Napster knowingly encourages and assists copyright infringement on its platform.

19
No. 97 Civ 1190 (PKL) (SDNY 1997).
20
A&M Records, Inc. v. Napster, Inc; 239 F.3d 1004 (9th Cir. 2001).
INTERNATIONAL PROTECTION FOR INTELLECTUAL PROPERTY RIGHTS IN
CYBERSPACE

The following are the international instruments which provides protection for Intellectual
properties rights:

i. Berne Convention (1886),

ii. Madrid Agreement Concerning the International Registration of Trademarks (1891),
iii. Hague Agreement Concerning the Registration of International Designs (1925),
iv. Rome Convention for Protection of Performers, Producers of Phonograms and
Broadcasting Organizations (1961),
v. Patent Cooperation Treaty (1970)
vi. Agreement on the Trade-Related Aspects of Intellectual Property Rights (1994)
vii. World Intellectual Property Organization Copyright Treaty (1996), World Intellectual
Property Organization Performances and Phonograms Treaty (1996).

Uniform Domain Name Dispute Resolution Policy (1999):

Since the domain disputes are very common in cyberspace, a Uniform Domain Name Dispute
Resolution Policy was put into place. It is applicable to the existing Top Level Domain
Names. This policy is incorporated in all the agreements between the Registrar and person
who obtained domain names. It provides relief for abusive registration and use of identical or
deceptively similar domain names. When a complaint is received, the dispute is referred to a
service provider. Any person aggrieved with their decision can move the court of law.

ICANN Domain Name Dispute Resolution Policy:

The ICANN Policy was recognised by the WIPO for cyber domain name dispute resolution.
This method is more economical as well as faster. ICANN accepted the WIPO policy
pertaining to domain name disputes on October 24, 1999. Registrars use the UDRP Policy to
resolve disputes pertaining to .com, .net, and .org domains. When the ICANN’s approved
service provider receives a complaint alleging domain name infringement, it must initiate
administrative proceeding if the domain name is identical or confusingly similar to the
complainant's trademark. The defendant does not have legal claim to the domain name.21

21
Aggarwal Gunish, (2018) “Intellectual Property Rights And The Internet World”, International Journal of Law
Management & Humanities Volume 1, Issue 2 available at (https://www.ijlmh.com/wpcontent/uploads/2019/03/I
ntellectual-Property-Rights-And-The-InternetWorld.pdf), last visited 20/01/2024.
INDIAN PROTECTION FOR INTELLECTUAL PROPERTY RIGHTS IN
CYBERSPACE

In India, Intellectual property rights in cyberspace is protected through the following

legislations which are as follows

i. Copyrights Act, 1957

ii. Information Technology Act, 2000
iii. Trademarks Act, 1999
These laws address issues related to online copyright infringement, data protection, digital
signature and trademarks in digital domain. The Information Technology Act, 2000 was
passed to support and preserve electronic transactions in electronic media. The law has 94
sections divided into 13 chapters covering topics such as digital signatures, e-government,
recognition and transmission of electronic records, security of electronic records, cyber
regulatory appellate courts, and liability of network service providers. It has been
constructed. Although Intellectual property rights infringement is one of the most pressing
areas in cyberspace, the IT Act does not provide any remedy. In India there is no provision in
the Information Technology Act to penalize cyber squatters or domain hijackers. Possibly we
can get the registered domain back. The said Act does not contain any provision regarding
cybercrimes related to intellectual property rights and jurisdictional issues. Although
computer programs are protected by copyright law, no remedies are provided for online
software piracy.

The Ministry of Communication and Information Technology and the Government of India
have implemented new policies to deter cybersquatting, and the .IN registry has taken steps to
compensate companies that have been the victims of such actions. As an autonomous body,
.IN Registry has also taken proactive measures to ensure operational stability, security, and
reliability in cyberspace.

CONCLUSION

With the emergence of internet and excessive use of electronic device and survey’s showing
the preferences of online shopping by Indian consumers, an express and clear law protecting
IPR is need of the hour. Numerous laws have been enacted to protect intellectual property but
when it comes to protecting IPR in cyberspace, Indian legislations have a long way ahead.
Key areas like exercise of jurisdiction, copyright and trademark issues authority over
transaction and communication have to be brought under the purview of cybersecurity laws.
Though it is difficult to protect the IPR in cyber space, it must be met to protect the interest
and advancement of e-information and e-commerce regime. To navigate the complexities of
cyberspace effectively, a continuous awareness of legal updates and technological shifts is
imperative, ensuring that intellectual property remains safe and secure in dynamic digital
regime.

REFERENCES

1. Tabrez Ahmad, Cyber Law and E-Commerce, APH Publishing Corp., New Delhi,
2003.
2. Protecting Intellectual Rights and the Cyber Space, Karnika Seth, Cyberlawyer &
Managing Partner, Seth Associates, available at (https://www.karnikaseth.com/wp-
content/uploads/Protecting-Intellectual-Property-in-the-CyberSpace.pdf ); last visited
20/01/2024.
3. Information and Technology Act, 2000.
4. Shubham Kumar et al, Present scenario of cybercrime in INDIA and its preventions, 6
no. 4 International Journal of Scientific & Engineering Research, 1971 (2015).
5. Dr. Nituja Singh, Mr. Sandeep Suman and Mr. Sahil, “A Basic Outline Of IPR Laws
With Cyber Law: An Indian Perspective”, “Journal of Positive School Psychology”,
2022, Vol. 6, No. 6, 4406-4412.
6. David Satola and Henry L.July , in “Towards a Dynamic Approach to Enhancing
International cooperation and collaboration in Cyber Security Framewor”, The MW.
Mitchell law journal.
7. Cyber Laws by Justice Yatindra Singh, (2016), Sixth Edition, Universal Law
Publishing.