Unit-7:

Intellectual
Property Issues
& Cyberspace
By- Ms. Shivangi Sinha
Assistant Professor
NLC BVDU, Pune
 Outcome:-

• Concept & Nature of IP

• Copyright & Internet
• Domain Name Registration
• Trademark Issue in Cyberspace
• Status of Computer software under Patent Law
 Concept & Nature of IP
Intellectual property, very broadly, means the legal property which results from intellectual activity in the industrial, scientific and artistic
fields. Countries have laws to protect intellectual property for two main reasons. One is to give statutory expression to the moral and
economic rights of creators in their creations and such rights of the public in access to those creations. The second is to promote, as a
deliberate act of government policy, creativity and the dissemination and application of its results and to encourage fair trading which
would contribute to economic and social development.

Generally speaking, IP law aims at safeguarding creators and other producers of intellectual goods and services by granting them certain
time- limited rights to control the use made of those productions.

These rights do not apply to the physical object in which the creation may be embodied but instead to the intellectual creation as such. IP
is traditionally divided into two branches: “industrial property and copyright”. The convention establishing the World Intellectual Property
Organization (WIPO), concluded in Stockholm on July 14, 1967 (Art. 2(viii) provides that
“intellectual property shall include rights relating to:
1) literary, artistic and scientific works:
2) performances of performing artists, phonograms and broadcasts;
3) inventions in all fields of human behaviour;
4) scientific discoveries;
5) industrial designs;
6) trademarks, service marks, and commercial names and designations;
7) protection against unfair competition and all other rights resulting from intellectual activity in industrial scientific, literary or artistic fields”.
 Copyright & Internet:-

• Copyright is a form of protection provided by the laws of the United

States (title 17, U.S. Code) to the authors of "original works of
authorship" including literary, dramatic, musical, artistic, architectural
and certain other intellectual works. This protection is available to both
published and unpublished works.
• First law enacted 1790.
• 1976 copyright law followed international law, extending copyright for
50 years after death of the author/creator.
 Continued:-

• What is Plagiarism? Plagiarism is the act of stealing and passing off the ideas, words,
or other intellectual property produced by another as one's own. For example, using
someone else's words in a research paper without citing the source, is an act of
plagiarism.
• The Internet has been characterized as the largest threat to copyright since its inception.
The Internet is awash in information, a lot of it with varying degrees of copyright
protection. Copyrighted works on the Net include new s stories, software, novels,
screenplays, graphics, pictures, Usenet messages and even email. In fact, the
frightening reality is that almost everything on the Net is protected by copyright law. That
can pose problems for the hapless surfer.
 Domain Name Registration:-

• Internet domain name is a combination of typographic characters used to describe the

location of a specific location online. It is known as the Uniform Resource Locator or URL.
It is considered the identity of a Web site.
• 'WWW' means that site is linked to World Wide Web.
• 'google' is the name you choose to your site, and ideally is readily identifiable with your
organization name or core business.
• '.com' is known as top-level domain name and it indicates that your organization name or
core business.
• Sometimes '.in' is being used in place of '.com' that means that company is registered in.
 Continued:-

• Domain name registration system started on the basis of the "First come First serve" basis.
The registrant authority which was initially the "Internic" did not take the responsibility for
checking the ownership of the name. Later when the internet became popular, large popular
companies wanted to enter the internet with their own websites and often found that the
domain name they were seeking had already been booked.
• So companies which wanted the same domain name had to pay a price, which were
sometimes unimaginable. This increasing cost of buying back of domains resulted in 'Meta
society' trade mark owners coming together and claiming that their intellectual property rights
on a registered trade mark should be extended to "domain name". This has resulted in
considering "Registration of Domain Names without the intention of using them" as
cybersquatting.
 Continued:-
• Domain name disputes became rampant mainly because of the jurisdictional issues within the cyber
space. 2016 was the year in which cyber squatting cases hit record.  US is the first country to introduce
a legislation which is specifically for trademark infringement in cyberspace known as Ant cybersquatting
Infringement Act, 1999. In general, domain name disputes can be solved in the following manner-
• By ADR mechanism such as Arbitration and Mediation.
• By Court Proceedings
• By agreement between the parties (Example- The parties may arrive at a mutual conclusion for some
consideration).
• Byconforming to procedure for settlement of disputes as entered in the domain name registration
agreement entered between registrar and registrant.
• Inorder to overcome the problems of settling disputes, ICANN came up with the Uniform Dispute
Resolution Policy (UDRP) as a mechanism to settle domain name disputes. This policy enables a
trademark owner to challenge the legitimacy of a domain name. 
• Yahoo! Inc v. Akash Arora & Anr IIAD 229 (Delhi High Court:1999)
 Trademark Issue in Cyberspace:-

• Infringement of trademark occurs when one company generally uses the trademark
of another company or trademark similar to that of other company in the course of
trade of goods and services to deceive the customers and earn profit by using the
goodwill of other company. With the advent of internet, this process of trademark
infringement has become even easier.
• The rival companies create websites and register domain names to deceit the
customers. The concern about infringement of trademarks has been in existence
since common law times.
• The Trademark infringement disputes, in earlier days, were settled by the Courts
based in the traditional principles of trademark law. Federal Trademark Law was
enacted which basically dealt with trademark infringement in cyber space in three
different ways which were cyber squatting, trademark dilution and trademark
infringement.
 Continued:-

• Apartfrom these issues various other issues concerning trademark infringement in

cyberspace came before the court such as infringement by way of linking or framing,
Meta tagging etc.
• LINKING & FRAMING – When a user accidently or knowingly clicks on a link
highlighted on a webpage known as “hypertext reference link”, a totally different
webpage appears which transports the user to a new location. This whole process is
termed as “linking”. Trademarks are also misused by this process of linking. Fake
companies copy the trademark of well-known brands and put them in the hyperlinks
highlighted on various websites. 
• META TAGGING – Every site has a keyword field. Meta tagging is nothing but
manipulation of this keyword field of a search engine. The manipulators insert a word in
the keyword field of a site which manipulates the search engine so that the user
returns to the same site although the site may have nothing to do with the search
engine.
 Status of Computer software under Patent Law

• Software programs have become an indispensable part of the world due to the increased
efficiency, effective & safe interactions, and improved functionalities. Businesses are
increasingly relying on software innovation to leverage growth.
• Globally, India has an established footprint in the Information Technology (IT) sector. The
Indian government plans to boost its contribution to the global software product industry by
the year 2025, as per the National Policy on Software Products, 2019. The report specifically
mentions how Intellectual Property (IP) creation is one of those characteristics of software
products which helps in increasing the overall value.
• Under the Indian IP regime, a software can be protected as a copyright or a patent. Considering
that copyright provides protection only for software code, the most effective way to protect a
software is under the patent law as it protects the basic concept behind the software.
• Although a tad complex, but the grant of patent for software is possible in India. For a
software to qualify for patent protection, it must first satisfy the three major components of a
patentable invention- novelty, inventive step, and industrial applicability like any other invention.
 Continued:-
• 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.
Thank You