LEGAL CONSIDERATIONS IN PROTECTING INTELLECTUAL PROPERTY FROM CYBER THEFT
Author- Trisha Chatterjee ,3rd Year BBA.LLB Student of Bharati Vidyapeeth, New Law College, Pune
Abstract:
These days, it’s critical to safeguard intellectual property rights in order to preserve the rightful ownership of original inventors and intellectual property owners. Thanks to advancements in technology, it is now easier than ever to violate an owner’s rights, steal, or damage their intellectual property. Cybersecurity protecting the holder’s intellectual property rights is now available.Original works in the arts, literature, photography, writing, painting, and even dance in textual form as well as audio or video files are protected by intellectual property rights. Both the actual and intangible forms of these works are protected by the IPR. Legal remedies are possible for infringements of intellectual property rights such as patents, copyrights, trademarks, trade secrets, industrial and layout designs, and geographical indications, even in cases where the infringement occurs online. The owners of copyrights or patents have benefited from the global marketplaces brought about by technological breakthroughs and innovations in the cyber world. But every excellent invention has its share of problems, and with the development of cyber technology, intellectual property rights violations have emerged as a big worry.
Keywords: Intellectual Property Rights, Cybersecurity, Digitalisation, Cyber Threats, Cybercrimes, Data Protection
Introduction:
Online content must be safeguarded, and intellectual property rights and cyber law are inextricably linked. The ever-growing and changing realm of cybercrimes encompasses not only frauds, cyberstalking, phishing, cyberbullying, and spamming, but also illegal practices such as hyperlinking, framing, meta-tagging, and infringement of intellectual property rights (IPRs), copyrights, trademarks, trade secrets of businesses operating online, audios, videos, and service marks.
What Do Cyberspace Intellectual Property Rights Mean?
The term intellectual property rights (IPR) refers to the legal protections afforded to those who are the creators and owners of a work and have used their creative faculties to make something. Such rights may be awarded to those who are involved in creative fields like music, literature, or invention, and they may subsequently utilise them in their commercial endeavours . Intellectual Property Rights Types Investing heavily in cyberattack prevention and IP protection is right.According to the government, cybercrime is a national security issue and could eventually surpass terrorism as the top national security worry.In reality, reputational harm is the main worry when it comes to cybercrime, which is the second most common economic crime after asset misappropriation, according to a PWC survey of financial services organizations. Furthermore, the vast majority of the organizations polled had neither cybercrime nor response strategies in place, nor did they regularly or formally evaluate social networking sites or cybercrimes. Still others lacked cyber security training and senior management or board of directors oversight of such incidents.
The following categories can be used to further classify intellectual property rights:
While the internet has made it easier to conduct business online, communicate with loved ones, publish literary works, and share knowledge, it has also made personal information that is protected by copyright or patents more susceptible to online threats.
An efficient system for managing intellectual property is ideal for all e-businesses, of which there are many in cyberspace. Although there are several internal and national regulations protecting intellectual property from cyberattacks, it is the moral responsibility of IPR owners to take all necessary precautions to deter and lessen unlawful virtual attacks.
India’s Rights to Intellectual Property
Different constitutional, administrative, and judicial laws have been defined for the protection of intellectual property rights (IPRs) in India, including copyright, patents, trademarks, and other types of IPRs.Laws Passed to Preserve Intellectual Property. To protect intellectual property rights, the government passed significant legislation in 1999 that was based on global standards. Below is a description of the same.
The mailbox system for patent filing was made easier by the Patents (Amendment) Act of 1999. For a period of five years, it grants exclusive marketing rights.
The 1999 Trademarks Bill.
The Act of 1999 on Copyright Amendment.
Bill of 1999: Geographic Indications of Goods (Registration and Protection).
The Designs Act of 1911 was superseded by the Industrial Designs Bill of 1999.
In order to further update the Patents Act of 1970 in accordance with TRIPS, the Patents (Second Amendment) Bill, 1999 was introduced.
DIFFICULTIES IN CYBER LAW PROTECTION OF IPR:
A. Violation of Copyright:
“The owner of any published artistic, literary, dramatic, or scientific work is granted copyright protection over his work to prevent others from utilising it under his name and making money off of it.”
The use of software without the owner’s consent, the creation and distribution of copies of the software, its unapproved sale, and unlawful duplication from websites or blogs are all considered violations of these copyrights.
Linking: Clicking on a text or image on a webpage will take the user to another webpage without ever leaving the one they are currently on. It endangers the rights and interests of the website owner, who may also lose out on revenue based on how many people visit their sites. Users can get the impression that the two websites are connected and share the same domain and owner as a result. Because there are unclear rules at both the national and international levels, deep linking is difficult to regulate. Cybercriminals that attempt to violate copyrights benefit from this ambiguity. To guarantee the smooth operation of online resources and enterprises, the rights of copyright holders and the free access of information must be balanced. Sections 14 and 51 of the Indian Copyright Act, 1957 raise a legal question because it is unclear at what point in time a copyrighted work is being reproduced. The internal linking links present another difficulty. The end user, unaware that he is collecting photos from other websites, copies the images from a map that is made on the browser that he visits when he clicks on the link. The challenge of tracking the exact stage of copyrighted image reproduction is a persistent issue in infringement investigations, similar to deep linking. Even though the person who created the in-line connection did not directly distribute the content of the original website, they are nonetheless in violation of Section 14 of the Copyright Act of 1957 since they made it easier for illegal copies to be made.
Framing: This presents additional difficulty and turns into a topic of discussion and legal dispute regarding how to construe adaptation and derivation under Section 14 of the Copyrights Act of 1957. Users cannot be held accountable for duplicating, transmitting, or distributing copyrighted content because the framer just gives them the means of viewing copyrighted content that is obtained from a website to the browser they are using. The issue is whether downloading copyrighted content from the internet and fusing it with other materials to make something unique qualifies as legal adaptation or interpretation.
B. Piracy of Software:
The act of generating unapproved duplicates of computer software that is shielded by the Copyright Act of 1957 is known as software piracy.
Soft lifting is the act of distributing a program to an unapproved user without a licence agreement. Software Counterfeiting: This refers to the production of counterfeit software, which is priced lower than the original and imitates the original. This include supplying the manuals, CDs, and box, all of which are made to resemble the original as much as feasible.
Renting is the act of temporarily using a copy of software without the owner’s consent, which is against the terms of the software’s licence agreement.
C. Infringing on trademarks and cybersquatting:
A trademark is a distinctive identification mark, such as a graph, that is used to distinguish one person’s goods or services from those of another. It can include the shape, packaging, and color scheme of the goods.
Cybersquatting is a cybercrime that includes spoofing a well-known domain name in order to trick consumers into thinking it is the original one, with the goal of profiting from this. This is done by registering, trading, or selling a well-known domain name in order to profit from its goodwill. A domain name dispute occurs when multiple parties contend they have the right to register the same domain name, and when a trademark that has already been registered is registered by a party other than the owner.
Adding a word to the keyword area of a website, known as meta tagging, encourages search engines to find and drive readers to the site even though the content of the website has nothing to do with the word. When a website incorporates meta tags from other websites, it could be considered trademark infringement and negatively impact the other website’s company.
For a domain name to be considered abusive, a few requirements must be met:
If consumers inadvertently access a phony domain name created with the malicious aim to benefit by deceiving users of a popular trademark domain, it can be considered abusive since it provides the impression to them that the domain name is identical to another registered prominent trademark.
There are no legitimate rights or interests of the registrant in the domain name.
There is dishonest use of the registered domain name.
Review of the Literature: Cybersecurity and intellectual property rights (IPR) are two important topics that have received a lot of attention lately, especially in relation to India. When it comes to safeguarding intellectual property online, cybersecurity is essential. Technological advancements have led to major challenges to the confidentiality, integrity, and availability of intellectual property assets, including unauthorised access, data breaches, and cyberattacks. Strong cybersecurity defenses are necessary to prevent theft, infringement, or misuse of private data, trade secrets, copyrights, patents, and trademarks.
Relationship between Cybersecurity and IPR
Digitalization has created a number of connections between cyber security regulations and intellectual property rights. The following examples show how cybersecurity and IPR law are related: To safeguard confidential data: In the current digital era, both individuals and enterprises produce and preserve substantial volumes of confidential data, encompassing trade secrets, patents, copyrights, and other forms of intellectual property. Protecting sensitive data from theft, unlawful access, and data breaches requires cybersecurity.
To prevent cyber theft and infringement: Intellectual property, including designs, research data, and proprietary software, can be stolen as a result of cyberattacks. IPR law is involved in the prosecution of cyber thieves and the imposition of legal repercussions for their acts.
Regarding Data Protection and Privacy: Sensitive and personal information about specific people may be included in intellectual property. Cybersecurity safeguards aid in preventing data breaches and guaranteeing adherence to data protection regulations.
International Laws for Intellectual Property Protection in Cyberspace Protecting Digital Copyrights: Unauthorised distribution and piracy of copyrighted content have grown in popularity as a result of the simplicity of digital replication. By limiting illegal access and third-party dissemination of copyrighted content, cybersecurity measures can aid in the protection of digital copyrights. Regarding Patent Protection: Patents may be issued for cybersecurity technologies. Cybersecurity
inventions and technologies are protected by intellectual property regulations, such as patent law, which incentivizes innovators to continue developing their fields.
Protection of Trade Secrets: Trade secrets are important intellectual property that must be protected, and cybersecurity is crucial for this. Trade secrets may be disclosed without authorization as a result of cybersecurity breaches, which could seriously hurt firms. Trade secret protection and criminal prosecution are made possible by IPR law.
Case Studies: Cybersecurity and Intellectual Property in India
The Coca-Cola Corporation v. Bisleri International PVT. LTD. AND ANOTHER
The Delhi Court decided this IPR matter, which is also known as the “Maaza War” case. These were the matters brought up in court:
Is the Delhi High Court competent to hear this case?
Exists any passing off of trademark infringement?
Does the plaintiff have the right to a long-term injunction?
HELD:
It was decided that the Court could select a case if there was a possibility of intrusion. It was noted that the court could make a decision on the matter if there was a purposeful use of the trademark rather than a coordinated or indirect one. The court held that there may be a well-established legal position that states that exporting goods from one country should be seen as engaging in commerce inside that country when goods are exchanged, which amounts to trademark infringement. In addition, “The Court quashed the defendant’s appeal and granted an interim injunction against the defendant from using the mark in India as well as in the export market to prevent the plaintiff from irreparable loss and injury.”
“The Rome Convention for Protection of Performers, Producers of Phonograms and Broadcasting Organizations (1961), the Madrid Agreement Concerning the International Registration of Trademarks (1891), the Hague Agreement Concerning the Registration of International Designs (1925), the Patent Cooperation Treaty (1970), the Agreement on the Trade-Related Aspects of Intellectual Property Rights (1994), the World Intellectual Property Organization Copyright Treaty (1996), the World Intellectual Property Organization Performances and Phonograms Treaty (1996), and the Uniform Domain Name Dispute Resolution Policy (1999), taken together, constitute the various international conventions, treaties, and agreements for the protection of intellectual property in cyberspace.
Indian laws pertaining to intellectual property rights
It is evident from Section 51 of the Copyrights Act, 1957 that the copyright owner has exclusive rights, and any action taken in violation of that right would be considered infringement[12]. Given the lack of explicit legislation governing Internet service providers’ (ISPs’) liability, it is reasonable to read Section 51 to include server facilities facilitation. by ISPs in order to accumulate user data on site, which is then disseminated in order to generate revenue from service and advertising fees. To hold ISP accountable for aiding and abetting copyright infringement, the other ingredients— “knowledge” and “due diligence”—must be satisfied cumulatively in order to view the situation in this way.
While Section 79 of the IT Act of 2000 offers a conditional protection from the liability of online
intermediaries, it is nevertheless subject to interpretation under other civil or criminal laws. An intermediary is not responsible for any third-party content hosted on its website under the IT Act of 2000. In order to obtain protection or exemption under Section 79 IT Act, 2000, the intermediaries must adhere to the 2021 Guidelines with diligence. Consequently, depending on the specifics of each case, it becomes essential for initiative-taking judicial interpretation.
JURISDICTIONAL QUESTIONS IN CYBER LAW IP CASES
Because cyberspace has no boundaries and there are frequent cross-border infringements, intellectual property issues are now a worldwide issue. The following authorities will have jurisdiction over legal disputes: prescription, adjudication, and enforcement of law.
There has been a noticeable evolution in legal ideas and notions to address the concerns regarding jurisdiction when it comes to deciding cases involving cyberspace intellectual property infringement. The tests that are most important are the Effects Test, the Minimum Contacts Test, and the Sliding Scale Test, sometimes known as the “Zippo Test,” which are derived from US courts. When one or both parties are outside the court’s territorial jurisdiction yet maintain communication with the state where the court is housed, the Minimum Contacts test is relevant. The effects of any cybercrime that occurs within the court’s jurisdiction are subject to the Effects test. Cybercrimes conducted outside of India are subject to Section 75 of the IT Act, 2000, if the offense involves a computer, computer system, or computer network located in India. The jurisdiction of Section 4 of the IPC, 1860 is expanded to include offenses committed outside of India that are directed towards an Indian computer resource. By using judicial activism and sound jurisprudence, Indian courts are able to defend intellectual property owners and render judgments against online infringements.
Cyber Risk Areas
In order to safeguard their intellectual property and vital computer systems, businesses must identify unapproved sources of access. There are a lot of these sources.
First and foremost, it is critical to acknowledge that employees and the company’s email system are critical components in this process.
Emails are a company’s computer system’s entry point and most likely a weak point.Most likely, hackers are also thieves. Following an investigation earlier this year by the Department of Justice (DOJ) and the Internal Revenue Service (IRS), over 105 hackers were discovered in 23 states, leading to over 939 criminal charges pertaining to identity theft and other offenses. The SEC has also filed lawsuits alleging securities fraud in relation to computer hacking.
Remarkably, foreign and domestic government institutions have also been identified as potential sources of data leaks.In fact, the SEC came under fire for neglecting to create a cyber security strategy to safeguard its private data.
Law firms are not exempt from cyber dangers, either. Because legal firms are easy targets for cybercriminals due to the volume and caliber of data they retain, they have been identified as weak points in some cyber security measures.
CONCLUSION
Stricter legal procedures must be used to safeguard sensitive data and information as well as intellectual property online in light of technology breakthroughs and innovations. Newer forms of cybercrimes involving intellectual property are emerging, making it necessary to pass new legislation because existing regulations are insufficient to provide justice given the difficulties in identifying and apprehending those who violate intellectual property in the cyberspace.
In order to facilitate international trade, e-commerce, and other online businesses, a secure environment for import and export is essential to safeguard intellectual property rights. Sophisticated and up-to-date technological techniques, such as digital watermarks, digital signatures, encryption, and cryptography, are vital for safeguarding copyrighted content. To identify the author, numbers, or codes associated with such works, it is imperative to maintain a record of every work that is owned by intellectual property rights. Although going through the legal system to resolve a dispute is not the only option, owners of copyright, patents, trademarks, and other intellectual property rights must exercise great initiative, take all necessary precautions to protect their works, and stay up to date on technological developments.
CITATION:
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2. Intellectual Property rights law in cyber law. Banerjee.S, 2021.
3. M.K. LAW relating to Intellectual Property In India
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