Introduction:
Intellectual property refers to the creation of a mind capable of being legally protected by various intellectual property rights such as patents, copyright, trademark, trade secret, etc. Intellectual property right allows the owner of such right to exercise a monopoly over their creation. The Patents Act, Trademarks Act, Indian Copyright Act, Designs Act, etc. are some laws governing Intellectual Property Rights in India.
Copyright grants rights and protection to the creators of literary, dramatic, musical, and artistic works as well as to producers of cinematograph films and sound recording. Copyright vests exclusive rights in the hands of the creator of the work and encourages creativity and innovation in society. To some extent, it even protects our database even though we do not go out and get such data registered under the copyright act. Article 21 of the Constitution of India deals with the right to life and personal liberty which are fundamental for a person’s very existence. The right to life and personal liberty has a very wide scope and it includes within it the right to privacy as well. Within the ambit of the right to privacy, we have a right to ensure the protection of our personal data from unauthorized access.
Copyright
The word ‘copyright’ has not been defined under the Indian Copyright Act, 1957 but in common parlance, it can be understood as the exclusive right granted to the creator of a work to reproduce, communicate to the public, adapt and translate his original work. Copyright protects the expression of the idea and not the idea per se. Section 13 of the Copyright Act, 1957 has specified original literary work, dramatic work, musical work, artistic work, cinematograph films, and sound recordings as the areas of work in which copyright subsists, and such work is protected for a term of life plus sixty years in India. A person doesn’t need to get his original work registered under the copyright act as the creation of the work automatically grants copyright to the creator but it is advisable to get the work registered as it will serve as prima facie evidence that the work is your original creation.
With the advent of technology and the internet, it has become very easy to not just get access to anything easily but also copy it within a few clicks. This unauthorized use and re-creation of another person’s work without their permission leads to what is known as ‘copyright infringement’. Section 51 of the Copyright Act, 1957 has specified copyright in a work shall be deemed to be infringed in the following instances:
- When any person without obtaining a license either from the owner of the copyright or from the Registrar of copyrights does anything which only the owner of the copyright has exclusive rights of doing
- Performing of copyrighted work in a public place
- Public exhibition of copyrighted work
- Reproducing copyrighted work for sale/hire or distributing them for trading purposes or personal gains
- Importing infringing copies of copyrighted work in India from another country
However, there are certain exceptions to this provided under Section 52 of the Copyright Act, 1957 which permits limited use of copyrighted work without the owner’s authorization some of which are fair dealing with work, research work, criticism or review, reporting of current events, reproduction for the purpose of the judicial proceeding, etc.
Protection of Personal Data
Article 21 of the constitution of India envisages ‘Right to Life and Personal Liberty’ and includes protection and privacy of personal data and information within its purview. Protection of personal data from unauthorized access is fundamental for any person as it contains sensitive information about a person that can be used to identify him. Alan Westin in his book ‘Privacy and Freedom’ defined privacy as “the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others.”[1]
We click on the ‘Agree’ button popping on our screens without reading or understanding what are we agreeing to. We grant permission to the sites and the application to use, retain, and sometimes even sell our personal information to others. Intellectual property rights and copyright as data protection instruments puts no obligation on the manager of such data to report loss or breach of data and the person whose data has been breached remains largely unaware till it leads to some sort of trouble for him. There is no intellectual property law prescribing limits on the use of personal information by the owner of such right.
However, there have been instances where personal data has been protected as original work by way of the judgment given by the courts.
- In the case of Burlington Home Shopping Pvt. Ltd. vs Rajnish Chibber, 1995, the plaintiff was running a mail-order service company and had gradually compiled a database of a list of clientele/customers over the years by investing significant time and money. The defendant was once an employee of the plaintiff. As their relationship soured, the defendant started his own mail-order shopping business and managed to get a copy of the plaintiff’s database for establishing his business which was the plaintiff’s guarded secret for running his business. The plaintiff contended that the database was his original ‘literary work’ and he has copyright over it which was infringed by the defendant’s actions. The question raised was whether such a compilation of customers database can be subject matter of copyright. The court held that” a compilation of addresses developed by anyone by devoting time, money labor and skill though the sources may be commonly situated amounts to a `literary work’ wherein the author has a copyright.”[2]
- In Diljeet Titus, Advocate vs Mr. Alfred A. Adebare And Ors.it was held that copyright exists not only in what is drafted and created but also in a list of clients and addresses specially designed by an advocate or a law firm.[3]
- In Fairmount Hotels Pvt. Ltd. vs. Bhupender Singh, the Delhi High Court recognized copyright over photos uploaded on social media platform ‘Facebook’.[4]
- ICC Development (International) Ltd vs. Arvee Enterprises, recognized the right of publicity, an intellectual property right which vests exclusive right to an individual to control commercial value in respect of his name, voice, personality trait, etc., and to prevent others from exploiting that value.[5]
Conclusion
The advancements in the field of technology have been a blessing to us in unimaginable ways but it has also brought with it certain woes. With tons of personal information and data easily available and accessible online it becomes important to ensure that such information remains protected from being misused. Personal data and information as such are not legally protected under the copyright act and therefore remain vulnerable to be misused. Currently, The Personal Data Protection Bill 2019 has been drafted to protect the private and personal information of individuals by regulating the usage, processing, disclosure, and transfer of such information. It is indeed a very welcome move as without a comprehensive piece of legislation personal data and information remains open to be abused.
[1] Alan F. Westin, En.wikipedia.org, https://en.wikipedia.org/wiki/Alan_F._Westin (last visited Dec 6, 2020).
[2] Burlington Home Shopping Pvt. … vs Rajnish Chibber on 20 October, 1995, Indiankanoon.org, https://indiankanoon.org/doc/130087/ (last visited Dec 6, 2020).
[3] Mr. Diljeet Titus, Advocate vs Mr. Alfred A. Adebare And Ors. on 8 May, 2006, Indiankanoon.org, https://indiankanoon.org/doc/1023088/ (last visited Dec 6, 2020).
[4] India: Delhi High Court on the Copyright on Photographs uploaded on Facebook, S.S Rana & Co, https://ssrana.in/articles/india-delhi-high-court-on-the-copyright-on-photographs-uploaded-on-facebook/ (last visited Dec 6, 2020).
[5] Icc Development (International) … vs Arvee Enterprises And Anr. on 1 January, 2003, Indiankanoon.org, https://indiankanoon.org/doc/358048/ (last visited Dec 6, 2020).
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