Introduction:
The Information Technology Act, 2000 is the result of the resolution by the General Assembly of the United Nations (UNCITRAL), dated 30th January 1997, which adopted the Model Law on Electronic Commerce on International Trade Law. Cyber Crimes are one of the fastest-growing crimes around the world. This Act has been successful in setting down the framework of its rules and regulations in cyberspace and it also addresses some pressing concerns regarding the misuse of technology. But it suffers from some serious deficits that haven’t been discussed, which is regarding the intellectual property issues.
Intellectual property means knowledge or information in any form which contains a commercial value and intellectual property rights are often defined as a combination of ideas, inventions and creations i.e. Copyright, Patent, Trademark, Design are a number of categories of Intellectual Properties. These items are creations of the human mind and are therefore called property.
Information Technology Act 2000 doesn’t mention a single word about intellectual property protection while the Infringement of IPR is one of the foremost challenging areas in cyberspace. Similarly, Copyright and Domain name violations do occur on the web but Copy Right Act 1957 & Trade Mark Act 1999 are silent on it which specifically deals with the problem. Therefore we’ve got no enforcement machinery to safeguard the domain names on the net. The time has come when the government must enact certain legislation for the protection of intellectual property in cyberspace.
Intellectual Property Rights
Intellectual property rights are a common type of legal rights or protection provided to the creators in the cyberspace. The sole purpose of IPR is to encourage new creations, including inventions, scientific work, and products that would help to increase the economic growth. There are four types of IP Rights which include: patents, copyrights, trademarks, and trade secrets.
Trademarks
A trademark is a distinctive sign that allows customers to easily identify particular goods and services that a corporate provides and hence helps the consumers to differentiate them from that of others. A trademark comes in the form of text, phrase, symbol, sound, etc. Trademarks unlike patents, can self- protect a whole bunch of products and services instead of just one product. McDonald’s golden arch is one such good example and so is Facebook’s logo.
In India, using certain emblems/symbols and names is prohibited for any professional or commercial purpose under THE EMBLEMS AND NAMES (PREVENTION OF IMPROPER USE) ACT, 1950. This law has been enacted by the govt. of India for safeguarding the interest of the public. The prohibited names also include some generic names of salts and chemicals.
Recently, the Controller of Patents, Trademarks, and styles, India, has come up with a full listing of Trademarks of the words and symbols registration which are prohibited under the (Indian) Trademarks Act, 1999.
Patents
A patent is used to safeguard an invention from being created, used, or sold by any other person without the permission of the owner. Patents are one of the most important types of IP Rights protection. A patent owner has every right to commercialize his patent, including buying and selling of patents or granting a license to any third party under mutually agreed terms.
Copyrights
The copyright owner has exclusive rights to sell or publish and produce any literary, sound, art, or architectural work created by the author. Copyrights do not protect ideas, rather it covers only ‘tangible’ forms of inventions and original work for e.g. Art, music, software codes etc.
Trade Secret
Trade secrets are a form of business secrets. They are proprietary systems, strategies, or formulas that are confidential and are not meant for unauthorized commercial use by others. This is a critical form of protection that helps businesses to gain a competitive advantage.
Interdependence of IPR and IT Act
The utility of computers and the web in recent times is well understood and is equally embedded in the modern business and commerce as within the society. The benefits of the employment of the computers and internet are immense within the modern business and our society can’t function smoothly without computers and information technology. But the involvement of the internet and computers has brought along many unavoidable misuses of computers. Such misuse has been more possible because there is no territorial limit or boundary in using computers and the same can be used from any jurisdiction.
E-commerce nowadays has become very fashionable especially within the corporate sector. The benefits and scope of publicity of business through e-commerce or business on the WWW can reach the surfers in no time on any spot of the planet. But this has paved the way for the emergence of the cyber-crimes. Cyber-crime means and includes crimes where a computer is employed as a measure for committing crimes or as a target of crime.
To cater the cyber-crimes, the parliament of India has enacted the IT Act, which provides legal recognition to digital signatures and electronic records. The Act is a legal framework that facilitates and safeguards electronic transactions within the electronic medium. It’s based on UNCITRAL (United Nations Commission on International Trade Law) which adopted a model law on e-commerce advocating a shift from a paper-based environment to a computer-based environment.[1]
But the IT Act, 2000 somewhere lacks to deal with the problems of intellectual property.
IT Act about Intermediaries
After the notification of the Information Technology Amendment Act, 2008 within the official gazette, the act came into force on October 27, 2009[2]. Under the IT Act, 2000[3], the intermediary was termed as anyone, who on behalf of any other person receives, stores, or transmits that message or provides any service with regard to that message. However, the IT Amendment Act, 2008[4], has clarified the definition “Intermediary” by specifically including the telecom services providers, network providers, internet service providers, web hosting service providers within the definition of intermediaries thereby removing any doubts. Furthermore, search engines, online payment sites, online-auction sites, online market places, and cyber cafés also are included within the definition of the intermediary.
Section 79 deals with the immunity of the intermediaries. Section 79 of the IT Act, 2000 was roughly drafted and was considered cruel on the intermediaries. One such example is that of the case of Baazee.com (renamed as eBay.in), an auction portal which was owned by the American auction giants Ebay.com. In this case, the CEO of the corporate was arrested for allowing an auction of a pornographic video clip involving two students on their website. Under the old Act, intermediaries were exempted only to the extent if they proved that they did not have any knowledge regarding the infringement or that they exercised all due diligence to forestall such infringement or offense. This type of approach made websites liable if constructive knowledge was proved or it lacked significant measures to stop such infringement. It’s virtually impossible for any website to have medium traffic to observe and analyze its contents and also involves cost implications likewise.
This stringent approach led to the amendment of the IT Act 2000. Section 79 of the Act has been modified to the effect that an intermediary shall not be accountable for any third party information data or communication link made available or hosted by him. This is often subject to the following conditions:
- The basic function of an intermediary is restricted to providing access to a communication system over which information made available by a third party is transmitted or temporarily stored or hosted;
- The intermediary doesn’t initiate the transmission or select the receiver of the transmission and choose or modify the data contained within the transmission;
- The intermediary analyses and observes due diligence while discharging his duties.
Therefore, as a result of this provision, social networking sites like Facebook, Twitter, etc. would get immuned from liability as long as they satisfy the conditions provided under the section. Similarly, the Internet Service Providers (ISP), blogging sites, etc. would also be exempted from such liability.
However, an intermediary would lose his immunity, if he conspired or abetted or aided or induced either by threats or by promise or otherwise within the commission of the unlawful act.
Sections 79 established the concept of “notice and takedown” provision as prevailing in many foreign countries. It provides that an intermediary would lose his immunity if upon receiving actual knowledge or on being notified about any information, data, or link residing in or connected to a computer resource controlled by him is being employed to commit an unlawful act and if he fails to expeditiously disable the access thereto.
Even though the intermediaries are given immunity under Section 79, they might still be held liable under Section 72A for disclosure of private information of any individual where such disclosure is without consent and is with intent to cause wrongful loss or wrongful gain or in breach of a lawful contract. The punishment for such disclosure is imprisonment extending up to 3 years or a fine extending to 5 lakh rupees or both.
This provision introduced thereunder Amendment Act, 2008, is aimed toward the protection of privacy and private information of an individual.
Conclusion
As intellectual property is one amongst the most valuable assets of a person, it should be protected at any cost since an individual puts his skills, labor, and hard work in his creation. Hence, there’s an urgent need for enacting strict laws in this respective field, so that these crimes associated with IPR might be avoided in the future. The dispute regarding new domain name law should intend to provide trademark and service mark owners, legal remedies against defendants who obtain domain names “in bad faith” that are identical or kind of similar to a trademark. It should act as a vital weapon for trademark holders to protect their IP within the online world. In the USA, they have special legislation for the prevention of cybersquatting i.e. “U.S. Anti-Cybersquatting Consumer Protection Act, 1999” which protects the interest of owners of both registered and unregistered trademarks against the use of their marks within domain names and also safeguards living persons against the use of their personal name under certain circumstances.
Nevertheless, the Information Technology Amendment Act 2008 has put in real efforts to supply immunity to the intermediaries but has certainly failed to achieve its objective because of loose drafting of a few provisions. Therefore, Indian Legislators should bridge these gaps and must provide indispensable immunity to the ISPs in order to enable them to work in India with no fear and inhibitions. It’s high time that our government should enact appropriate legislation similar to that of the US which would protect the rights of IP holders.
References:
[1] Vakul Sharma, & Sharma, S. (2016). Information technology : law and practice : law & emerging technology, cyber law and e-commerce. Universal Law Publishing, an Imprint of LexisNexis.
[2] http://www.mit.gov.in/sites/upload_files/dit/files/downloads/itact2000/act301009.pdf. (n.d.).
[3] http://www.mit.gov.in/sites/upload_files/dit/files/downloads/itact2000/itbill2000.pdf. (n.d.).
[4] http://www.mit.gov.in/sites/upload_files/dit/files/downloads/itact2000/it_amendment_act2008.pdf. (n.d.).
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