Intellectual Property Rights or IPR refers to the rights pertaining to the creation of the mind. It refers to the ownership of the design or thought by the one who came up with it. There are various tools of protection that fall under intellectual property which are trademark, patent, copyrights, industrial designs, trade secrets, and many more. Cyberspace is the non-physical sphere where many computers are connected through computer networks to build communication between them. Cyberspace has come within reach of everyone with the help of technology.

The internet has formed a new universe of literary and artistic possibilities. The internet’s ease of communication from creator to viewer, and also from viewer to viewer makes it a perfect medium for scholarly and artistic producers to expand their work, and for the commercial artists to get good reach. It also additions to the methods through which viewers can modify, edit and spread on the internet sound, text, and images, technology has brought ingenious opportunities.

Someone who copies original content may incorporate a variety of things like they may try to imitate the work of original content and slightly distort or tweak it until it is not recognized as the original. Re-transmitting and copying have various reasons like some are expressing social commentary, some are making new works of art, or some raid for the sake of profit. People who re-transmit the work of other people fall into trademark and copyright laws whose theories are well known, but whose framework remains unchecked on the internet. 

How can we protect IPR in Cyberspace?

Intellectual Property Rights (IPR) are receiving good significance with the unparalleled emergence of the internet and computers and the growing popularity of e-commerce. But there is a drawback to this trend of growing dependence on the internet and Information and communication technologies, mainly the problem of protecting and detecting infringements of intellectual property in the online area. The difficulty is about how to protect your intellectual property rights (IPR) and avoid the unlawful use of online material.

Breach of intellectual property is often found on the web instead of offline sources, because of the transmission and copies of data, the benefit of access, and the unidentified cyberspace connected with them. Infringements of the intellectual property in cyberspace incorporate any unlicensed or unlawful use of marks, service marks, trade names, images, music or literature, or sound. Different kinds of infringements have come out as a result of a unique matrix of cyberspace including deep hyperlinking, hyperlinking, meta-tags, and a lot more.

There are various ways to protect IPR, but the most common thread of theories needs to be protected, rewarded, and arouse innovation in the work and initiative of the creator or author. The internet’s freedom is often exploited, which is where regulation and law come into the picture. Not only have the national laws played an important part in strengthening IPR, but the compliance of any intellectual property laws in the world through conventions and treaties has also become very important mainly because of the nature of cyberspace being borderless. In cyberspace, jurisdiction is not an easy subject, and many legal concepts and theories have developed over time to address it, the most notable of which is the Minimum Contacts Test, Zippo Sliding Scale Approach, and The Effects Test.

The Berne Convention on the Protection of Literary and Artistic Works, the Trade-Related Aspects of Intellectual Property Rights (TRIPS), the Madrid Agreement Concerning the International Registration of Trademarks, the Hague Agreement Concerning the Deposit of International Designs, and the Patent Cooperation Treaty are all the treaties that rule the protection of IPR and have obtained acceptance across the board.

The TRIPS agreement builds a set of standards for the protection of IPR and directs that all member countries apply the most-favored-nation idea to IP protection. But, the protection of IP rights is not yet in line with compliance, and the TRIPS agreement has failed to assimilate protection standards among intellectual property systems. However, the agreement includes Article 10, which illustrates compilations of data and computer programs, and Article 11 also, which tackles the rights of the authors and their successors in title to avoid or allow others from economically renting their copyrighted works.

IPR Infringements

IPR Infringement are of various types which include –

• Trademark infringement
• Patent infringement
• Copyright infringement

Trademark Infringement

Trademark infringement is a major issue in cyberspace for breach of intellectual property. In the Yahoo case, it was said it is not a simple address and that the domain name is the same as the trademark but still has equal protection rights with the trademark. Section 28 in the Trade Marks Act, 1999 provides the owners exclusive rights to use their trademarks and also permits them the right to accuse of infringement of their rights and seek damages, injunctions, and profit-related accounts. The preservation of trademarks advances the main three policies which are consumer protection, the preservation of goodwill of a trademark holder, and economic efficiency.

The notable judgment came from the Marks & Spenser’s case, in which it was said that anyone who intentionally registers the name, trade-mark, or brand name of another commercial organization, would face struggle and would be liable to passing-off. In such cases, the court assumes that the public will be deluded where the name merely consists of the trade name or name of another enterprise. Domain name conflict stems from the intentional registration of a domain name by Cyber squatters that includes the name of the business, brand, a trademarked word, and other names. Many domains name cases have been filed for solving the dispute and domain names have been given the same level of protection as trademarks under Indian Trademark Law. 

In Google Inc. v. Mr. Racha Ravinder case, the website in question was googlenetbiz(dot)com. Google alleged that the defendant’s website was similar to the Trademark Google, which was registered widely. It disagreed that the respondent had an ambiguous motive in registering their website to confuse web visitors and that this violates the Trademark because it is similar to the worldwide Trademark Google. The panel ruling supported the complainant and ordered that the site should be transferred to Google Inc.

Patent Infringement

The conduct of a prohibited act with respect to a patented invention without the allowance of the patent holder is called patent infringement. Commonly, permission is issued in the form of a license. It is defined differently in different jurisdictions; however, it involves selling or using patented innovation. The Patent law allows protection and security of the original content and the inventions which are made by the authors in the form of computer effect which hence falls in the scope of the cyber jurisdiction.

The Patent Act of 1970 states the punishment for the illegitimate access and use of patents of other original workers. It penalizes this act and gives punishment for up to a period of two years. Section 118, also penalizes for the breach of secrecy provisions in the Intellectual Property Rights. Section 120 of the Patent Law Act punishes for the unlawful claim into patent rights with a fine of one lakh rupees of an individual.

Copyright Infringement

Copyright infringements are prosecuted in India under Section 63 of the Copyright Act, 1957. The copyright protection is given to the owner of any published literary, scientific, or artistic work over his work to forbid everyone else from exploiting that work which is in his name and gain profit through it. When these proprietary creations are enforced by anyone without the permission of the owner, it results in copyright infringement. If copies of any kind of software are made and sold on the internet without taking the permission of the owner or even taking the same content from online sources, these all result in copyright infringement.

Linking, cybersquatting, and software piracy are some of the major copyright issues in cyberspace. One of the well-known cases of digital copyright infringements is the Napster case, the defendants sued the plaintiff for P2P file sharing, and the plaintiff got lost. In this case, Napster supplied software that permits users to exchange media files that were saved on their computers with other Napster users. The music firms have been seeking USD 1,000,000 for each copyright-protected song that was downloaded through Napster as the case was filed.

The parties came to an agreement in which Napster was allowed to provide the settling parties with a third of all future income, and Napster Inc. closed down in 2000. The copyright law enlarges its protection to cover computer software also. According to Copyright Act 1957, Section 2(o): literary work includes tables, computer programs, and compilations including computer. This act admits computer data and computer programs as creative works that are entitled to copyright protection. On the other hand, business approaches do not have the same level of security. 

Conclusion

Considering the growth of technology advancements and cyberspace, trademarks and copyrights are not limited to the usual intellectual property alone but have spread to IPR over the internet. To fight cybercrime, India’s parliament established the IT act, which recognizes electronic records and digital signatures as legal documents. But there are no provisions to deal with intellectual property issues in the IT Act of 2000. Cyberspace is becoming a core for intellectual property rights infringement.

Traditional intellectual property protection regulations have been enforced in cyberspace also. But, due to the fundamental structure of the internet, many important challenges have appeared which include jurisdictional rules, recognizing hybrid kinds of online infringements, and addressing combat of laws issues that apply equally in cyberspace. Researchers have been encouraging approaches for technological, legal, and social efforts and actions to defend cyberspace. Breach of intellectual property rights in cyberspace is a difficult area to enforce legally. Nevertheless, it is a digital era challenge that we must meet in the interest of and advancement of the rising e-information society.