Author: Swapnil Chauhan, Translam College of Law.
What is Intellectual Property?
Intellectual Property is a broad bracket of all the assets that do not have a physical presence and can not be touched or hold. These are the creation of human mind or we can say human intellect that incudes any sort of art work like logos, brand names, design, symbols etc. Intellectual Property is restricted and legally protected from the use without authorization.
There are many types of intellectual property such as – Patents, Copyrights, Trademarks, Franchises, Trade secrets, Digital Assets etc.
What is Intellectual Property Rights?
Intellectual Property rights are the rights given to the person who created the intellectual property that is creation of their mind which gives them the right to control and exploit it for certain time period. These rights are safeguard of intellectual property. IPR grants the authority to owner for prevention from others for using, distributing or displaying the Intellectual Property.
PATENTS are for the protection of inventions and innovations in business. It prevents from selling and making the invention for particular number of years.
COPYRIGHTS are given for the original works and give an owner the right solely to copy, distribute, perform, adapt and display. For copyright the work should be original and of the owner itself. Though, ideas and information are not eligible for copyright.
TRADEMARKS are for the protection of Logo, Names, Symbol, Images, Label and Taglines. If anyone else wants to use the design or image than one need to obtain the license from the original holder.
TRADE SECRETS are highly confidential information that can provide advantage to others when leaked. The companies have to protect their trade secrets through non-disclosure agreement and non-compete clauses in the contact of employment.
FRANCHISE is a license purchased by an individual along with license it allows the person to use the trademark, name, process and proprietary knowledge.
INTELLECTUAL PROPERTY IN DIGITAL AGE
INTRODUCTION – In digital era it has become very easy to create business ideas and spread information globally. It has become much easier to spread the innovation, scientific work and art work across the world with the help of electronic media and internet due to which it has become easy for people to copy and use it without the permission of the original owner. Copyright Infringement has been a biggest challenge in the digital age since the availability of content is easily available on internet. Open-source software is another challenge as it is made available to public which allows the user to modify it as per there requirement and distribute it freely.
It is important to mark these challenges, government can make strong intellectual property laws and can improve enforcement efforts. Digital right management can be used by the organization to protect their intellectual property while exploring the radical business models.
CHALLENGES OF INTELLECTUAL PROPERTY ENFORCEMENT IN THE DIGITAL AGE
ONLINE COPYRIGHT INFRINGEMENT is the most common type of violation and has become a critical concern due to the easement in sharing the data digitally or the availability of the data on internet. Infringement has become very easy and can be done in various forms like unauthorized copying, distribution and downloading without the permission of the owner, piracy of the original content. The idea of remixing and repurposing may give an idea of transformation they may believe the work is fair but they are unaware that they may have violated the copyright laws.
SOFTWARE PATENTS AND DIGITAL INNOVATION protection is another challenge that knocks on the door with rise of technology. There is always a debate on whether the inventions and innovations that includes digital technology should be made a part of the patent protection or not since proving the patent infringement has been a complicated task. When it comes to the digital technology patent protection the one should know about the technology involved in the innovation and ability to prove the infringement, then only successful enforcement can be done.
DIGITAL PIRACY is a widespread illegal and unauthorized reproduction of copyrighted material. In the era of digitalization, duplicating of the protected works has become very easy and even for the copyrighted material piracy persists.
BALANCING INTERESTS between the creator, consumer and digital platform is a complex task and is one of the challenges. Finding out a middle ground in order to protect the Intellectual Property Right of an owner and the innovation is a crucial task.
VAGUE JURISDICTION – As we talk about the digital world and technology and the big internet platform finding out the jurisdiction where lies the IP Law is complicating. IP Laws are different in different countries therefore for the person who is seeking the justice for infringement is a challenging task for the legal practitioner.
CYBERSQUATTING is another challenge that exists in intellectual property law. A domain name is company’s digital identity and many disputes are because of cybersquatting. The issue arises when a person registers similar domain name or image or logo or well know trademark with an intention to sell their product and make their own market.
STEPS TO PROTECT YOUR INTELLECTUAL PROPERTY RIGHTS IN DIGITAL ERA
In order to protect the intellectual property rights there are two methods that can be adopted that are Digital Right Management (DRM) and Technical Protection Measures (TPM).
- Electronic Marking is the automatic generation of the marks that is uniquely tagged to all the documents. It is used to protect the document in electronic publishing while printing, faxing and copying.
- Digital Watermark technology is akin to logos that are used on TV channels. It has a unique identifier that include information about the copyright information, owner of the document and sender information. Watermarking is done to safeguard multimedia works.
- Cryptography is for security and privacy of the information; it involves the information that is encrypted in a way that is unreadable to anyone apart from the legitimate user.
- IP Address should be securely patented and copyrighted to establish legal ownership.
- Digital files should be protected through encryptions and watermarks.
- In order to protect the digital file Non-Disclosure Agreements should be implemented, contract should be made, software’s can be licensed.
- Use two factor authentication, passwords and secure protocols to limit access.
- Use blockchains, Artificial Intelligence powered tools and other technologies in order to amplify IP Protection.
- Attorneys, agents and other specialists should be consulted for the IP protection.
- Be up to date in terms of new laws coming for the IP, also inform importance of IP to users and employees and partners.
OPPORTUNITIES OF INTELLECTUAL PROPERTY ENFORCEMENT IN THE DIGITAL AGE
- Economic growth and job creation is one of the advantages of Intellectual Property Law. Industries like pharmaceuticals, entertainment, technology etc. contribute to the economic growth and job creation. Strong intellectual property protection needs a strong research and development team in this emerging market. A workforce with strong skillset is frequently required and therefore resulting in the Job Opportunities and economic growth.
- To maintain the competition and reputation of investors and creators they are motivated to maintain a level of brilliance in their offerings. IP law ensures the quality of the product and services. As the product developed is of high quality and dependable the customers draw the maximum benefit out of it.
- Cultural Prevention in terms of encouraging artists, creators and authors to create something that reflects their culture. IP law preserve the cultural diversity an protect traditional knowledge.
- IP right is used on online platform across the world which help people to be satisfied about the privacy.
- IP Infringement is detected easily as it is an online platform.
- Blockchain Technology helps in securing the records of the IP Owner.
- Using the technology like IP audits and risk assessment can proactively help in protecting the IP Infringement.
- IP Law encourages the new inventions and innovations. These laws provide the promise of protection for individuals who invest their time and efforts in innovations.
- IP Law motivates the investors to push their boundaries in order to find the solution of the complex problems.
- IP helps in turning new ideas into the profit-making business by licensing patents, copyrights etc. that are symbol of separate identity that can help in additional income.
JUDICIAL INTERVENTIONS
- Bajaj Electrical Limited Vs. Gourav Bajaj & Anr.
In this case defendant used the Name of Bajaj and also had a website under this name. Defendant also used the impression “Powered by Bajaj”. Here High Court of Bombay questioned whether the present case comes under the defense of use of personal name. Court held that the defence is not valid as it has already been proved that the intention of the defendant was mala fide while adopting this name. The Court passed the Interim Order against trademark, store name and domain name.
- Star India Pvt. Ltd. Vs. Movietrunk.com & Ors.
In this case the Plaintiff owned a film production company and defendant owns the online streaming websites. The suit was filed against defendant as he made the film available on the online platform without the permission of the plaintiff resulting in infringement. Delhi high court held that right of plaintiff, Copyright Act 1957 has been exploited as defendant made the film available online to the public without consent of plaintiff. Court ordered the injunction and also ordered for the damage done.
- International Society for Krishna Consciousness (ISKON) Vs. Iskon Apparel Pvt. Ltd. & Ors.
The case was that defendant was selling the apparels under the name of ISKON with the trademark. The plaintiff brought the case in front of Bombay High Court for Trademark of infringement. The Court held that in present scenario the case is clearly of the trademark infringement as the defendant has marked all the statutory requirement of a recognized trademark.
CONCLUSION
It is evidentiary that understanding and protecting the Intellectual Property is very important and also the matter of concern in the digital age. In the digital environment it is very difficult to distinguish between what is right in terms of copying from internet and what is not. It is the very complex task to know what is permissible and to what extent it is permissible and when it will be an act of infringement. Proactive Management and awareness of Intellectual Property Laws is the key to navigate this complexity.
FAQ’s
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