CYBER LAW

UNIT-7, INTELLECTUAL PROPERTY ISSUES AND CYBERSPACE

SYNOPSIS
 Introduction
 Concept of intellectual property
 Nature of intellectual property
 Copyright and the internet
 Trademark issues in cyberspace
 Status of computer software’s under patent law

INTRODUCTION
The Intellectual Property Rights[1] protect the original work in fields of art,
literature, photography, writing, paintings, even choreography in written format,
and audio, or video files.
The IPR protects these works both in tangible and intangible form. Patent,
Copyright, Trademarks, Trade Secrets, Industrial and Layout Designs,
Geographical Indications are intellectual property rights for which legal
remedies are available even for online infringements.
The ever-increasing and evolving cybercrimes are not confined to cyberstalking,
frauds, etc, are also infringement of IPR- copyright, trademark, audios, videos,
service marks by illegal practices like hyperlinking, framing, meta-tagging, and
many more.

CONCEPT OF INTELLECTUAL PROPERTY

Intellectual Property can be defined as inventions of the mind, innovations,
literary and artistic work, symbols, names and images used in commerce. The
objective of intellectual property protection is to encourage the creativity of the
human mind for the benefit of all and to ensure that the benefits arising from
exploiting a creation benefit the creator. This will encourage creative activity
and give investors a reasonable return on their investment in research and
development.
IP empowers individuals, enterprises, or other entities to exclude others from
the use of their creations. Intellectual Property empowers individuals,
enterprises, or other entities to exclude others from the use of their creations
without their consent.
NATURE OF INTELLECTUAL PROPERTY
1. Territorial
Any intellectual property issued should be resolved by national laws. Why is it
an issue? Because intellectual property rights have one characteristic which
other national rights do not have.
2. Giving an exclusive right to the owner
It means others, who are not owners, are prohibited from using the right. Most
intellectual property rights cannot be implemented in practice as soon as the
owner got exclusive rights.
3. Assignable
Since they are rights, they can obviously be assigned (licensed). It is possible to
put a dichotomy between intellectual property rights and the material object in
which the work is embodied. Intellectual property can be bought, sold, or
licensed or hired or attached.
4. Independence
Different intellectual property rights subsist in the same kind of object. Most
intellectual property rights are likely to be embodied in objects.
5. Subject to Public Policy
They are vulnerable to the deep embodiment of public policy. Intellectual
property attempts to preserve and find adequate reconciliation between two
competing interests.
6. Divisible (Fragmentation)
Several persons may have legally protected interests evolved from a single
original work without affecting the interest of other right holders on that same
item. Because of the nature of indivisibility, intellectual property is an
inexhaustible resource.

COPYRIGHT AND THE INTERNET

The improvement of Internet has given rise to several legal disputes with regard
to Copyright infringement. Since the infringement takes place in digital
networks, the courts find the analysis of such issues with hardship. The
infringement does not extent to just information but also includes photos,
videos, movies, music, multi-media and audio-visuals. Moreover, the material
mentioned cannot just be easily uploaded but also be downloaded with the same
quantum of ease.
Copyright, Designs and Patents Act 1988 does not contain the word ‘’internet’’
or ‘’digital’’. Indian Copyright Act, 1957 deals with the protection of computer
software. Unfortunately, it does not have any provision to check the piracy of
software on Internet. The amendment Act of 2012 also fails to give a definition
of ‘’digital work’’ or ‘’internet’’.
Internet is the biggest threat of Copyright holders due to the characteristics of
Internet. The peculiar feature with infringement on the internet is that it is not
easy to determine if a work is a ‘copy’ of a protected work an infringement of
the original.
The infringement in Cyberspace shall take place in different avatars namely;
 Framing
 Linking
 Caching
 Public Display of the Right by uploading on the Internet
 Archiving

TRADEMARK ISSUES IN CYBERSPACE

Registration of domain names is very important to establish a formal marketable
existence on the internet. There is as such no trademark review of the domain
names as it is burdensome work for the registrar. Therefore, there arise disputes
regarding the domain name vis-à-vis trademark under three circumstances:
1. Cybersquatting: It refers to the act of registering a domain name which is
made for the purpose of carrying out trade and commerce. The domain
name is the trade name of a particular company but is not registered by
the company. Such a registration is made by a third party with a view to
make profit by selling the domain name to the actual owner. Until the
third party has the domain name, the owner is not able to register his
trademark as a domain name.
2. Cyber Parasite: It refers to a situation where the gains and profits are
made by the use of the actual domain name. The method would involve
using a similar or wrongly spelled domain name which is similar to that
of a famous trademark. Such techniques are used to pass off products by
method of deception to the innocent consumers.
3. Cyber twin: It refers to a situation where both of the parties to the case
hold an authentic claim towards a particular domain name. Herein, both
the parties have a legitimate claim to a domain name. The cases involving
cyber twins are the most difficult to be resolved, because, the law of
 trademark and unfair competition may otherwise allow both parties to
enjoy concurrent use of both.

STATUS OF COMPUTER SOFTWARE’S UNDER PATENT LAW

The Indian Patent Act of 1970 discusses the triple test which makes an
invention patentable. As per the statute, ‘novelty’ suggests that the invention or
technology should not have been created, anticipated, published, used, or exist
in public domain anywhere in the world before filing the patent application.
‘Inventive step’ means that the invention must employ some technical
advancement over the existing state of art, enhance economic significance
and/or is non-obvious in comparison with the existing technology. It must be
conceptually inventive, unperturbed by the common general knowledge, and is
different from similar older inventions in a way that it is devoid of the obvious.
Further, the requirement of ‘industrial applicability’ implies that the invention is
capable of being manufactured or used in industry.
In addition to these criteria, the invention must be a patentable subject matter
and its disclosure must meet the formal and substantive standards of a patent
application. The statute expressly states that a software or computer program as
such is not patentable in India. More specifically, the 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. While introducing
the aforesaid provision, the report of joint parliamentary committee offered
some clarity for the words ‘per se’ by stating that “… sometimes the computer
program may include certain other things, ancillary thereto or developed
thereon. The intention here is not to reject them for grant of patent if they are
inventions. However, the computer programs as such are not intended to be
granted patent.” The latest Guidelines for Examination of Computer related
Inventions (CRIs) which pertain to patentability of computer programs
(including software) provide further clarity in this regard.
In practice, a tangible component must accompany the invented software to
make it patentable. Wherever a combination of hardware & software satisfies
the patentability requirements and achieves a further technical effect while
solving a technical problem, the patent application seeking protection for a
software is likely to be granted in India.