IP Infringement in Cyberspace: Issues and Legal Framework

Introduction:

E-commerce has been a growing field in recent times and cyberspace has become increasingly important for conducting business. A good share of small-scale businesses is available only on the internet. While this advancement in technology has benefitted the commerce industry and increased revenues, it poses a host of intellectual property issues. The primary cause of this is the issue of jurisdiction in the virtual world.

With a majority of the IP registrations such as trademarks that have been to an extent territorial, application of these within cyberspace becomes very tricky. Because of this, there rose an ill-founded belief that due to its lack of territorial restrictions, cyberspace is independent of intellectual property rights and application.[1] While personal jurisdiction applies to the internet in regards to disputes of defamation, application of this in the intellectual property field is examined within this article. Further, the article also explores various IP issues within cyberspace and the regulatory framework in India. Additionally, the article also examines the international stance on IP infringement in cyberspace.

Cyberspace and Cybercrimes

Cyberspace, in very simple terms, refers to the virtual, non-physical domain world of computers or any electronic device that enables or facilitates online communication.[2] Cyberspace allows individuals and entities to a host of things, be it communication, swapping ideas, conducting business, engage in discussions, and in recent times, working from home and online teaching has also been possible thanks to cyberspace. Alongside its own operating systems and interfaces, cyberspace also has its legal issues.

Cybercrimes are the crimes committed using or with the help of computers or the virtual world.[3] It can be the means of committing the crime or could be the target of the crime or in fact, both. With the rise in cybercrimes since the advent of computers, various laws are governing cyberspace and to regulate the activity. In India, the Information Technology Act 2000 serves this purpose. The act facilitates and safeguards electronic transactions in the electronic medium and aligns with the UNCITRAL model on e-commerce regulation and promotion.[4] While the act regulates transactions of electronic data or transactions through electronic media, it does not deal with issues arising out of the overlap of cyberspace with intellectual property.

Intellectual Property and Cyberspace

Intellectual property refers to the myriad creations of the human mind, such as inventions, ideas, designs, literature or art, and names or images used in commerce.[5] Intellectual property is protected by the law by accruing a host of rights through patents, trademarks, copyrights, and other IP regimes to protect these creations and to reap the benefits. Intellectual property can be categorized into two main categories: industrial property, which includes trademarks, geographical origins, patents, designs and semiconductor layout design, and copyrights. Copyrights include literary works and art, cinematography films, etc. the laws governing intellectual property in India are The Patents Act 1970, The Geographical Indications of Goods (Registration and Protection) Act 1999, The Design Act 2000, Copyright Act 1957, The Trade Marks Act 1999 and The Semiconductor Integrated Circuits Layout-Design Act 2000.

Even in the domain of Intellectual Property Rights (IPR), there are a variety of cybercrimes committed, where one person benefits or makes profits from another person’s creation. These rights of creation, which are protected by the IPR regime is vulnerable to cybercrimes mainly due to the lacunae in law and the issue of jurisdiction and territorial boundaries. Private information of an individual can be shared by another person violating the privacy of the individuals as well. Intellectual property infringements are more common in the online mode than in the offline mode due to the ease at which data can be accessed and transferred and due to the anonymity that cyberspace can provide to its users. Therefore, IP infringements are more pronounced in cyberspace.

Copyright Infringement Online

The main objective of copyrights is to encourage creative thinking and new inventions, which is why literary works and creative works are protected within the copyright regime. These works are protected for a limited period with exclusive rights to the owner to reproduce, republish, or use the work for commercial use. Once this period is over, the works belong to the public domain and the owner loses the exclusive right, but still bears his or her name, and credits are given. Copyrights today are used in numerous fields including publishing, distribution, media industry, film industry and broadcasting, etc. use of technology has made the copying of copyrights material simple and easy and as a result, unauthorized copying has been on the rise and the control of copyright infringements has become very strenuous.[6] Some of the infringements techniques online are mentioned below.

1. Deep linking- a website has a main home page and numerous subordinate links. The method of linking allows a website user to access the subordinate links of another website without leaving the current website. This is a problem because the income of a website is often dependent on the number of users visiting the website and therefore, through linking, this revenue is impacted while the website is being accessed.[7] This act is considered a copyright infringement under the British legal system.[8] The linking of graphic files of another website is known as “inlining” and is a form of copyright infringement.
2. Often, the work of one person may be passed off as someone else’s by republishing without taking permission or giving credits. This is more pronounced in the online mode mainly due to the ease at which information can be copied in the virtual domain, thus infringing the essence of the copyright.
3. Software piracy- this is an issue that is dealt with within the Indian Copyright Act and includes the counterfeiting of software or computer programs, unauthorized or illegal downloads of the same. This piracy is hard to keep track of due to the large number of users online, and the anonymity that the internet provides to users.

While it may not be hard to prove the infringement here, it is hard to identify the source of these infringements. Further, the existing regulatory regime has been inadequate in curbing these infringements over the years.

Infringement of Trademarks in Cyberspace

The next most common and notorious infringement of IPR in cyberspace is that of trademarks. This IP is more susceptible to violation through domain names, cybersquatting, and other such predatory practices that harm the revenue generated by the trademark holders. A trademark serves the significant purpose of identifying the product and its origin, helps advertise the product, and guarantees a certain standard of quality that is associated with the brand name. Often, a trademark is infringed by counterfeit products or competitive products that use identical trademarks to bank on the brand value of the original trademark and impact their consumer base. Such infringements are, as explained above, more plausible and prominent in the virtual domain. Some of them are discussed here below:

1. Cybersquatting: Distinguishing from a trademark, a domain name is essentially the linguistic counterpart of the IP Address.[9] Since the IP address is a complex number that is hard to remember, domain names are more pronounced and identified on the internet.
   Domain names are offered to persons on a first come first serve basis, which sometimes allows abusive registration of a domain name containing a trademark that the person has no legitimate right or interest in. This is known as cybersquatting, where the domain name holders offer it to the trademark owners at a higher profit margin. This abusive practice itself highlights the importance of the domain name in establishing an online identity.[10]
   The first case in India regarding cybersquatting was Yahoo Inc. v. Akash Arora & Anr.[11] where the defendant used the domain name “yahooindia.com”, similar to “yahoo.in” the Indian page of yahoo which provided similar services. The court recognized the practice as cybersquatting and ruled against the defendant.
2. Reverse Domain Name Hijacking: This practice, is where the trademark owners bully the domain name holders into submitting the name or press false charges to hijack the domain name, as the name suggests. This is often done by large and wealthy corporations.
3. Meta Tags: Meta tags, for a website page, provide information about the page description, keywords, and other relevant data. Often, pages create misleading meta tags to lure users to their websites to earn money.[12] While these tags were created to help sort the websites for easier access, it is now a practice for some to build false page rankings for poorly constructed websites to attract viewers. It can also include other famous trademarks as meta tags to divert the traffic to their sites.[13]

All these issues highlight the lacuna in the Indian legal regime that is inadequate to curtail these forms of infringement. The IT act does not have any legal penalties against cybersquatting. The only existing legal remedy is to get the domain back but there is no penalty attracted which might cause a deterrence effect on this practice. In addition to this, meta tags are only directly punishable, through misappropriation and within the competition but is not a punishable infringement under the trademark act. The act is somewhat lacking in addressing and regulating the cyber crimes pertaining to IP and the individual acts of Copyright and Trademark are also silent on online infringement.

International Regime on Online Infringement

Internationally, in many nations, the law recognizes online IP infringement and has a pronounced regulated framework to deal with them as well. Meta-tagging, in the U.S., is a recognized trademark and copyright infringement, depending on the infringing meta-tag and there are judicial pronouncements that establish a regime and test of infringement.[14] In fact, within the U.S. trademark law, proof of confusion is not required so long as there is a resemblance to the trademark, which reduces the burden of proof on the trademark owners and enables them to seek damages.[15] Even within the Copyright regime, the courts have recognized passing off as a legal claim for infringement as unfair trade practices and unfair competition.[16]

However, with the increasing use of the internet, online IP infringement has been on the rise and the international community also stresses the need for a holistic and proactive trademark and copyright protection strategy to overcome the obstacles posed by the conventional legal approach, since most companies have numerous IP assets.[17] Further, in these situations, the offense is the best defense. Trademark owners and corporations must invest in software that disables copy-pasting and take measures to keep the online infringement in check such as usage of “vanity URLs”.[18] Since these companies and IP holders are the ones that are at the maximum loss, it is prudent that they ate measures to ensure their IP is well protected from their side and find ways to effectively track infringers and reduce the loss caused.

Conclusion

While the virtual world may seem overwhelming and is proven to be incredibly useful, the dark side of this digital universe is its nature of enabling IP infringements. The absence of a strong legal framework that regulates online infringements has proven to be a fertile ground to continue such violations. The ambiguity surrounding jurisdiction, the anonymity of the users, all add to the woes in tracking such infringements and make legal recourse even more difficult than it already is. Therefore, there is a need to have a regulatory framework to actively deal with online infringement, which is on the rise, and to deter squatters and other individuals from practicing such notorious predatory practices. Further, there is a need for preventive and deterrent measures as well, to avoid such infringements which happen on a large scale regularly.

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References:

[1] Herbert Schwartz, Viewing Intellectual Property issues in Cyberspace from a Practicing Advocate’s point of view, 11 J. Civ. Rts. & Econ. Dev. 641, 644 (Summer 1996), https://scholarship.law.stjohns.edu/cgi/viewcontent.cgi?article=1381&context=jcred.

[2] Cyberspace, Technopedia (Sep. 30, 2020), https://www.techopedia.com/definition/2493/cyberspace.

[3] Atul Satwa Jaybhaye, Cyber Laws and IPR: The Indian Perspective, Bh.L.Rev. 166, 167 (Apr-May 2016), http://docs.manupatra.in/newsline/articles/Upload/19A86CE4-2FBD-432B-B166-AFBA9087A834.pdf.

[4] Vakul Sharma, Information Technology, Universal Law Publishing Company, New Delhi, 2013 at pg.no. 15.

[5] What is Intellectual property?, WIPO, https://www.wipo.int/about-ip/en/. (Last visited on 20.11.20 at 16:59).

[6] Supra 3 at 169.

[7]Abhirami A B, Intellectual Property Issues in Cyberspace, Legal service India, http://www.legalserviceindia.com/legal/article-3233-intellectual-property-issues-in-cyberspace.html#:~:text=The%20advancement%20in%20e%2Dcommerce,their%20intellectual%20property%20rights%20online.&text=Intellectual%20Property%20Rights%20(IPR)%20and,online%20content%20must%20be%20protected. (Last visited on 20.11.20, 16:59).

[8] Shetland Times, Ltd. v. Jonathan Wills & Anr., 1997 F.S.R. (Ct. Sess. O.H.), 24 October 1996.

[9] Supra 3 at 173.

[10] Supra 3 at 174.

[11] 2014 SCC OnLine Del 1212.

[12] Amruta Mahuli, Meta-Tagging Vis-à-vis Trademark Misuse: An Overview, Mondaq (May 25, 2017), https://www.mondaq.com/india/trademark/597260/meta-tagging-vis-vis-trade-mark-misuse-an-overview.

[13] Oppedahl & Larson v. Advanced Concepts, Civ. No. 97-Z-1592 (D.C. Colo., July 23, 1997). 

[14] Exxon Corporation v. Exxon Insurance Consultants International Ltd., [1982] RPC 69.

[15] Trademark Act 1946, 15 U.S.C. § 1125(a)(1)(A).

[16] American Tel. & Tel. Co. v. Winback & Conserve Program, Inc., 42 F.3d 1421, 1424 (3d Cir. 1994).

[17] Dr. Jochem M. Schaefer, IP Infringement Online: the dark side of digital, WIPO Magazine (Apr. 2011), https://www.wipo.int/wipo_magazine/en/2011/02/article_0007.html.

[18] Erica D. Klein & Anna K. Robinson, Combating Online Infringement: Real World Solutions for an Evolving Digital World, American Bar Association (Apr. 1, 2020), https://www.americanbar.org/groups/intellectual_property_law/publications/landslide/2019-20/march-april/combating-online-infringement-real-world-solutions-evolving-digital-world/.